2.1.9 Interim constitutional arrangements

It has been estimated that one third of all constitutional design processes from 1975 to 2003 involved interim documents. If the meaning of the word “document” extends beyond constitutions, then the number of interim arrangements would be even larger, as some of them are based on understandings, treaties, or peace arrangements that affect the way state power is to be exercised, but are not constitutions. Several terms can be used to refer to what we call here “interim arrangements”: provisional, temporary, interim, and transitional constitutions. In many cases it is impossible to understand the design of a constitution-making process without knowledge of the interim arrangements, which are indeed part of its overall objectives, strategy, and design.

Interim and incremental: Connected but different

Incremental reforms are different from interim arrangements. They are sometimes called “minimum reforms,” though this can be a misleading term in some instances of incremental reform, such as in Indonesia, where the changes made were far from minimal. Incremental reforms are contrasted with grand reform; unlike the latter, they are piecemeal, but, unlike interim arrangements, they are not necessarily a prelude to broader reforms. They are often the best reforms that are possible in difficult circumstances, and the hard decision is whether to reject them, recognizing that this may prevent further reforms, or to accept them in the hope that they will lead to broader reforms later, perhaps as a result of the dynamics of small but strategic early reforms. Chile, Hungary, and Indonesia offer significant examples of incremental processes that resulted in significant changes to the structure of the states in question. (For some arguments against a full-blown constitution-making process, to which incremental change might be an alternative, see part 2.1.2.)

Reasons for interim arrangements

When negotiating for peace, it is important that an agreement on a cease-fire be concluded speedily, but a long-term settlement, often seen as a new constitution, dealing with the underlying causes of conflict, would need considerably more time (as in South Africa). It may be premature to start negotiations on a new political order when myriad issues normally dealt with in a peace agreement have not been satisfactorily resolved (such as disarmament, demilitarization, exchange of prisoners, demobilization or integration of armies, and resettlement of the displaced). Depending on the sequence of events, if elections are to be held before the adoption of the final constitution, considerable time would be required to establish political, administrative, and security arrangements (as in Cambodia, Iraq, and Nepal), including decisions on who is entitled to vote—perhaps involving “lustration” (in this context, exclusion of those associated with past regimes), as in Iraq, or inclusion of communities hitherto excluded from citizenship and the franchise, as in Nepal.

A constitution-making process bedevilled by mistrust is unlikely to deliver a good, or any, constitution. Trust is a general condition for the success of any process, but it is particularly important when the negotiating parties have waged war against one another until recently. It has been argued that the difficulties in the Iraqi process arose because it was rushed; there was no time to build trust or develop a vision of the country.

It is desirable to use the “transitional” peaceful period to establish trust among the previous antagonists. At this stage a consociational approach may be important (where all key groups are represented), even if it is not the intention to retain this approach for the permanent constitution (as in Iraq, South Africa, and Sudan). Interim arrangements are sometimes a way to postpone difficult issues, which are hard to resolve in the aftermath of conflict but may be easier to tackle in the future with the goodwill that may have been established in the interim period.

The overall record of such arrangements is not impressive. But in many conflict and postconflict situations, some form of power sharing seems inevitable (as in Kenya in 2007, Cambodia, Iraq, South Africa, Sudan, and Zimbabwe). Consequently, more attention needs to be given to the modalities of the partnership arrangements. (In Fiji, Indo-Fijian parties declined the prime minister’s invitation to join the government, preferring to fight the next election without the “stigma” of participation in that government, before or after the 1997 constitution was agreed to. Perhaps unwisely, the basis of that constitution was a “government of national unity,” and a partnership between its two leading architects before the elections had laid a political foundation for it that did not hold when, contrary to their expectations, their parties performed poorly in the first election under the new constitution.)

A transitional constitution may be thought necessary to provide the legal framework for the running of the country when old institutions have collapsed or the old parties have disappeared or been greatly weakened (as in Somalia). In Afghanistan, for example, the arrangements were called “emergency interim arrangements” and justified due to “the unstable situation,” in view of the time it would take to re-create the state of Afghanistan. Crucial state institutions may have to be rehabilitated urgently while negotiations on a long-term settlement proceed (as in Afghanistan, Cambodia, and Iraq). Sometimes the old constitution may be considered unacceptable, for historical or ideological reasons, to one or more previously excluded groups, even if, through amendments, political understandings, or administrative measures, these groups could be given a share in governing the country (as in Nepal with the Maoists). In some countries, one or more key institutions involved in amendment procedures may have collapsed, making it impossible to amend the constitution, as can also happen if one key institution refuses to give consent to amendment. This might well have happened in Nepal, where the consent of the king, who had been sidelined by political parties, would have been necessary.

An important reason for interim arrangements is to provide a framework within which previous enemies can share state power, to facilitate the conclusion of the peace process, and to negotiate for a new constitution. They can promote stability in what could otherwise be a period of turmoil. Such arrangements can, however, give rise to their own problems, as the parties may

see them merely as a truce, before political “war” (competition for state power) starts again. This happened in Nepal and Sudan, where turmoil and suspicions continued well after the cease- fire and the peace agreement. Moreover, decision-making under interim power-sharing arrangements tends to be cumbersome and slow, and often requires consensus.

Another reason for interim arrangements is that in the immediate period following the cease- fire, previously warring parties dominate the political scene. Most of them have probably committed crimes against humanity, and may enjoy little public legitimacy. If the country were to move quickly to the permanent constitution, chances are that these warring parties would monopolize the process (as was the tendency in the Norwegian-sponsored process in Sri Lanka). It may therefore be better that the deals they make should be temporary, so that the process for the permanent constitution commences when conditions for greater public participation and the consideration of a wider range of social issues arise. On the other hand, it has been argued that the temporary nature of the arrangements makes it possible to find more imaginative solutions and cover issues that might not be dealt with in a permanent constitution.

A new use of transitional arrangements can be found in Kenya, Madagascar, and Zimbabwe following elections the results of which have been strongly contested. (The arrangements in these cases probably involve some modifications of the existing constitutions, especially concerning the structure of the executive; the ultimate aim may be a new constitution or a full return to the existing constitution. Kenya and Zimbabwe belong to the former category.)

The negative side of interim arrangements

Interim arrangements can be used to hijack the reform process. In Kenya in the mid-1990s, politicians used interim, and essentially minor, reform to forestall more fundamental change, taking the steam out of the civil society reform movement and holding up reform for at least a decade. Nepal in 1951 was under considerable pressure to democratize the political system through constitutional reform; the king promulgated an interim constitution as a prelude to reforms by a constituent assembly. Instead the interim arrangement lasted for eight years (and was changed to return to the king his old powers). It was not until 1990 that constitutional reform got back on track.

There are dangers in a long transition: momentum may dissipate, and agreement among the parties may disintegrate. If the focus is on the long-term democratic system, interim arrangements have to be dynamic, leading gradually to more inclusive forms and more accountability.

There is also a danger that if some reforms are instituted, the movement for radical change will lose momentum. The trick is to institute reforms whose logic is further reform, thus promoting the irreversibility of reform. (This could, for example, be done by inclusion of hitherto marginalized communities in the process.)

A transitional constitution may give opposing forces time to regroup and consolidate, which may put the objectives of peace at risk.

Interim constitutions have in some instances become the broad copy for the permanent constitution. In Iraq the earnest and prolonged nature of the negotiations on some issues in the Transitional Administration Law was such that the parties must have intended them to be the ultimate solutions (especially on issues such as federalism, language, and the future of the Kurdish forces, the peshmerga).

An interim constitution may exclude particular groups or issues. Both in the way it structures the process for the permanent constitution and if it becomes the model for the permanent constitution, this may have serious consequences for the country, and for the durability of the peace and the constitution.

Interim arrangements as road maps to a new constitution

To overcome the risk that change will lose momentum, it is essential that the interim arrangements include a road map to the new constitution. Indeed, some interim arrangements are largely about the road map, especially those negotiated under international auspices (as in Afghanistan, Cambodia, Kenya, and Sudan).

When the focus is the road map, it is not unusual to find more than one set of transitional provisions, sequentially. Both Afghanistan and Iraq demonstrate this: an initial bureaucratic procedure yields to a more consultative and representative administration, which has the basic responsibility of leading the nation to a new constitution or to elections for a constitution-making body.

Box 6. Negotiating interim arrangements in Nepal

After the People’s Movement of 2006 led to the end of the king’s absolute power, and in accordance with the agreement between the Maoists and seven “democratic” parties, decisions were made by consensus, and this is how the interim arrangements were decided. (The king, though nominally still present, was left out of the negotiations.) The initial decision on transitional arrangements (involving the removal of articles dealing with the monarchy and the recall of parliament with its immediate past members) was made nominally by seven parties, in reality by fewer. This happened in the face of Maoist opposition, but increasingly it was seen as a prelude to the next set of interim arrangements, in the making of which the Maoists would play a full role. Already the parties had conceded to the Maoists’ demands that the constitution would be made by a constituent assembly. Although an expert committee, under a much-respected Supreme Court judge, was appointed to draft the interim constitution, in practice the key decisions were made by nominees of the eight parties. Nearly five thousand submissions were made by the people, but there is little evidence that much heed was paid to them. The interim constitution was enacted nearly ten months after the recall of the ad hoc parliament.

The scope of the interim arrangements depends on factors such as the anticipated length of time before the ultimate constitution is in place (the longer that time, the more detailed the interim arrangements must be); the feasibility of using the existing constitution for the time being; the discretion to be left to constitution-makers (the less the discretion, the longer the interim arrangements); and whether the interim arrangements are under the administration of the international community (in which case they will be brief—as in Cambodia and Timor-Leste).

The orientation and scope of the interim arrangements

It is clear, then, that the orientation and scope of interim arrangements depend on the context and strategies for establishing the new political order. Hence there is great variety in such arrangements. Some are brief, largely concerned with the road map, adjusting state institutions toward that objective. Some would even lack various institutions of government. Others are as detailed as a final constitution would probably be. The Nepal 1951 constitution had no provision for a legislature, but only for an advisory assembly for the king. The 2007 interim constitution of Nepal made no provision for elections. But the South African interim constitution of 1993 was complete and detailed.

Expert opinion seems to waver between those who favor a short and businesslike document with a bare minimum of content and those who argue that the interim constitution should offer considerable detail and be as democratic as the final constitution should be (in part to cultivate democratic practices and habits). The latter is not so easy given the difficulties in transition that we have mentioned. It might also introduce rigidity when flexibility is needed (particularly in volatile contexts, as Nepal discovered). It is perhaps more important to make the process itself inclusive and principled than to attempt to set forth democratic rules for the interim administration. But much depends on the context, and it is hard to be dogmatic about these matters.

Who negotiates the interim arrangements

As with other aspects of interim arrangements, there is great variety concerning their negotiation. In general they are negotiated, but in some instances they can be prescribed by one party when it is in general control of the state. The Ethiopian and Ugandan arrangements were the decisions of the governments that had captured state power. A unilateral decision is also the practice of military authorities on the execution of a coup d’etat.

In South Africa the interim arrangements were negotiated almost exclusively among several political parties. Most of the negotiations at this stage were held behind closed doors. If there were disagreements among the parties, decisions would be made by the two major protagonists, the African National Congress and the National Party, concurrence between which was described as “sufficient consensus.”

If the interim constitution is to be negotiated by internal forces, there is an obvious dilemma: if circumstances are not right for deciding on the final constitution, how much detail will it be possible to decide on—other than the actual process for producing the final constitution? For this reason, interim constitutions sometimes bear considerable resemblance to a previous constitution, perhaps with the most obviously offensive provisions removed. This was notably true in Nepal. If, on the other hand, full negotiations for the interim constitution are possible, won’t the same considerations effectively continue? And why should the final constitution be different? This was largely the case in South Africa [1996], where the detailed negotiations over the interim constitution produced provisions that were substantially reflected in the final constitution.

In recent years, the international community has played a key role in devising interim arrangements. This was true in Afghanistan [2004]. In Iraq [2005], major decisions were initially made by the United States, but the intervention of the United Nations was instrumental in reaching agreement on crucial aspects of the interim arrangements, including the road map. In the case of Cambodia [1993], major decisions were made in Paris at a conference that included key Cambodian groups, several interested states, and the United Nations. In both Sudan and Somalia Western states have played an important role.

On the whole, little space has been found for public participation by civil society. Where political parties are dominant, they may have influence on the negotiating parties (as in South Africa [1996]), but even then, the role is limited. In Nepal [ongoing process], groups that were excluded from decision-making were able to secure amendments to the arrangements after considerable agitation, accompanied by violence.

Forms of interim arrangements

There is considerable variety in the ways in which interim arrangements—meaning how affairs of the state are to be managed during the period when negotiations begin and the final settlement is implemented—have been organized. In many cases it is possible to use existing mechanisms (suitably modified, as in many transitions in Eastern Europe), while in others new arrangements may have to be created (which can consume time and energy). One factor is whether the new forces agitating for recognition can be accommodated within existing arrangements. Generalizations are hard, because much depends on the context.

A particular dilemma in structuring interim arrangements is whether to try to stick to the existing, even if discredited, constitution or adopt an interim constitution. The arrangements in South Africa [1996] illustrate several of the issues mentioned above. Although the African National Congress had fundamental moral and political objections to the apartheid constitution, it agreed to work within it for an initial phase. Its decision was motivated by at least two considerations. The first was to reassure the members of the white community that changes would not be abrupt and would not be imposed on them (since they were in charge of the amendment procedures). The second reason was to lay the foundation for the rule of law by

accepting the principle of legal continuity. (See part 2.1.6.) The “interim arrangements” dimension was part of the agreement among the parties engaged in negotiations that the government and the legislature would act in accordance with the instructions of an unofficial interparty executive council. (During this period the main legal pillars of the apartheid system were repealed by the apartheid legislature.) But even with this concession, the supporters of the African National Congress would not have accepted the extension of the apartheid constitutional and legal system. The initial interim period was therefore used to agree on new arrangements for the next phase. The new arrangements, in the form of an interim constitution, were fundamentally different from the apartheid constitution and were decisive in the move to a nonracial democratic system. They included elections to a constituent assembly, which changed the power configuration of South Africa. Interim arrangements played an important, constructive role in South Africa (in contrast, for example, to Sri Lanka, where few attempts at interim arrangements as defined here have been made other than the proposals by the Tamil Tigers— the Liberation Tigers of Tamil Eelam—which seemed designed to entrench their preferred system ahead of negotiations).

It may sometimes be possible to use the existing constitution either in slightly amended form (e.g., in Kenya in 2007) or without any amendment but with an understanding that authority under it would be exercised through joint decisions of competing groups (as in Hungary as it gradually moved away from communism). In Afghanistan an older constitution, deemed the most democratic of all previous constitutions, was adopted, but with so many modifications that it imposed little in the form of an effective framework for key decisions made during the interim constitution or on the road map.

Legality of interim arrangements

The question of the legality of the interim arrangements is likely to arise. Those opposed to the forces that come into power may challenge the legality of their actions. The safest course therefore might seem to be to operate through the existing constitution. As we have seen, often this is not possible. Others insist that new arrangements can be justified under the concept of “revolutionary legality.” (See box 4.) Unless revolutionary legality is bounded by clear principles and rules, it can easily degenerate into arbitrariness and even anarchy. The mandate of the people, which is frequently referred to these days, is too imprecise and its contents too contested to serve as the foundation for revolutionary legality.

If it is essential to establish interim arrangements outside the framework of the existing constitution, it is important for their legality that they be based on broad consensus. This consensus could perhaps be achieved through a roundtable with key groups.

Box 7. “Incremental” change in Chile

Chile is an example: after the military rule, General Pinochet lost a plebiscite in 1998 on his future as a presidential candidate, and the country moved gradually to a democratic system. Between 1989 and 2005 the constitution was amended seventeen times, until two commentators said that if the latest batch of reforms was adopted, “institutions will finally catch up with the democratic process” (Esteban and Vial 2005).

Managing the transition period

We now turn to how interim arrangements may deal with managing the period of transition until the new constitution is prepared. A key factor is whether the process is driven by local or external factors. If external, there are two possibilities: (a) the country is taken into international care and the United Nations or a regional organization takes over management of state affairs (as in Cambodia, Kosovo, and Timor-Leste), or (b) there is massive international involvement (as in Afghanistan, Bosnia-Herzegovina, Iraq, and Namibia). In the former case, power is restored to the country only after the dispute has been “resolved,” law and order established (including possible disarmament), a new constitution adopted, and elections held. In the second case the international group works closely with the national authorities (which are often of an “interim” nature) and keeps open the “seats of power” for a competitive electoral process. In Namibia [1990], for example, authority was vested in a South African administrator (sympathetic to the white-dominated faction) but his powers were exercised in close consultation with the United Nations representative, who was ultimately responsible to the Security Council through the Secretary-General. In Afghanistan [2004], the Bonn Agreement provided for an interim government that was to be endorsed by a partially elected Emergency Loya Jirga, and the United Nations was asked to provide assistance to it. In practice, the United Nations advised Hamid Karzai and provided a considerable measure of administrative support.

Cambodia’s [1996] and Iraq’s [2005] arrangements were in between complete external control and complete local control. In Cambodia, certain functions were discharged by the United Nations, particularly the organization of elections to the constituent assembly and the protection and promotion of human rights. The day-to-day administration was carried out in accordance with the decisions of the Cambodian cabinet, which consisted of various local political groups.

In Iraq the administration was at first completely under the authority of the United States, represented by Paul Bremer, an appointee of the United States president, under the general authority of the Coalition Provisional Authority, which consisted of the United States and the United Kingdom. In July 2003, Bremer appointed twenty-five Iraqis to the Iraqi Governing Council to assist him in this task. The council appointed a council of ministers and a constitutional preparatory committee. Bremer’s initiative was intended to speed up the process for the adoption of the final constitution, as Iraqi politicians were reluctant to move fast, considering that they needed time for public consultation and to establish trust among themselves.

Bremer’s plan was torpedoed by the Grand Ayatollah Ali al-Sistani, the most influential Shia cleric in Iraq, who insisted that only an elected body should draft the constitution. The interim constitution (the Transitional Administration Law) was drafted by a committee of the Iraqi Governing Council and adopted by it. An interim government (consisting mostly of members of the former council) was set up; it took responsibility for elections and the operations of the constituent assembly. The constitution was adopted largely in accordance with the time limit, and fresh elections produced a new government and parliament.

The transitional phase was dominated by the concerns of the United States, and the Transitional Administration Law was in part a document negotiated between the Iraqis and the United States, touching on matters of special economic and political interest to the latter.

Internally managed interim arrangements

Since the start and the progress of negotiations often have a dynamic effect on the relations among the parties, it is not unusual that interim arrangements tend to be modified over a period of time. South Africa provides a good illustration. It passed through two distinct stages of interim arrangements. At first it continued with the system and government set up under the old (and disputed) constitution. Nelson Mandela was anxious to maintain legal continuity. But the old system was infused with a decision-making process in which all key parties to the negotiations participated. An executive committee of these parties was set up under the peace process. The cabinet agreed to exercise the powers of the government and, to the extent necessary, of the legislature, in accordance with the advice of the committee. Using this mechanism, some apartheid laws were repealed, and considerable progress was made toward a new constitutional settlement. The second stage was reached with the settlement on an interim constitution (which was adopted under the old constitution) and the holding, under the interim constitution, of the country’s first nonracial general elections. During this second stage, there was a government of national unity in which all major political groups were represented in the cabinet. A principal mandate of the newly elected parliament was to draft and adopt the final constitution. On the dissolution of parliament, elections were held under the new constitution—and a government was formed to usher in the end of the transitional period.


2.3.5 Capacity development

In a country emerging from conflict, capacity development can be an extensive task, and perhaps costly, because institutions that develop skills and knowledge relevant to a constitution-making process—such as parliaments, academic institutions, and civil society organizations—will often have collapsed. In these cases, developing the skills and knowledge necessary for staff members to carry out their tasks is essential if the process is to be nationally owned and led. This can include providing training on how to plan, take minutes of meetings, use the Internet, conduct civic education, administer and manage a process or run a referendum.

Ideally, all staff members should have a basic understanding of the whole idea of a constitution and constitution-making. The more the members of the staff understand, the more committed they will feel to the project. Staff members who are in contact with the public, or are involved in the production of documentation, or who analyze submissions, will need more. Different levels of training will be needed for different types of staff members. Training in the terminology of constitutions will be essential for translators and interpreters.

When the international community has a stake, it often rushes the process and provides foreign advisers who perform key tasks, such as drafting the constitution or devising the rules that govern the process. While this may speed up the process, it blocks the opportunity to build capacity for other democratic tasks and more importantly may lead to the people not feeling a sense of ownership over the results.

Taking the time to develop capacities strengthens the foundation and sustainability of other democratic institutions that emerge. For example, in Afghanistan [2004], many of the trained personnel of the secretariat for the constitution-making process later managed and staffed the newly formed electoral management body and secretariat for the legislature.


2.7.2 Implementation

Several contemporary constitutions have failed to take root. Either they are early victims of “coups”; they are replaced by new constitutions; or large parts thereof, dealing with both values and institutions, but particularly values, are ignored. There could be several reasons, connected to the characteristics of these constitutions already discussed in this handbook, that explain why large parts of a constitution are not implemented. Broadly, these are:

  • Some of these constitutions address nation-building and state-building; the former cannot be easily achieved without enlightened and committed leadership.
  • Some constitutions aim at a fundamental departure from, rather than merely reform of, existing political, constitutional, and social systems, necessitating new institutions and laws.
  • The scope of the constitution is wide, for the reasons given above, and there may not be either the political will or the technical capacity to address it in its entirety.
  • Some provisions aim to bring about reform of social structures, which goes against the interests of elites and privileged groups.
  • The emphasis on social justice threatens the interests of powerful sections of society.
  • The integrity and anticorruption provisions are resented by politicians and bureaucrats.
  • Many countries do not have a tradition of constitutionalism and the rule of law to anchor a constitution.

In short, unlike the more traditional constitutions, which were not only restricted to systems of government but also imposed on the rulers, contemporary constitutions seek to change state and society and are imposed by the ruled on the rulers (thanks to participatory constitution- making processes and to divisions within the political class). Resistance to implementation is therefore to be expected from several quarters. It is necessary to provide a formal process of implementation and to monitor it.

There are at least two aspects to the implementation of a constitution. One is internal to it, and it involves such issues as the coherence of the document; institutional responsibility for implementation, for example by the judiciary; and provisions addressing transitional matters and the phasing in of the new rules and institutions. The other is external; and it involves such issues as societal attitudes; empowerment of the people; preparing them to participate; internationalization of constitutional values; and the quality of leadership. This chapter is primarily concerned with aspects internal to the constitution.

Implementing, promoting, and safeguarding the constitution

The tasks directed at achieving implementation of a new constitution can be divided into three closely related but to some extent distinct elements.

Implementation

The first involves actions intended to implement the constitution, in the most obvious sense ofgiving full effect to its provisions, which include:

  • setting up new institutions provided for by the constitution, and providing them with the powers, personnel, resources, and general encouragement that they need to operate effectively; and
  • making new laws and policies to give effect to the constitution, and repealing laws inconsistent with the new constitution.

Promotion

The second involves actions intended to promote the constitution, which means going beyond implementation in the first sense, and working to make the institutions and laws operate as the living basis for the way the state operates, which includes:

  • enforcing the constitution and the laws made to implement it, and respecting the rights and freedoms of the people;
  • ensuring that the institutions established under the constitution are properly resourced and otherwise supported;
  • holding regular and free and fair elections (and providing the resources needed to enable them to happen);
  • providing access to justice, and resolving disputes in accordance with the constitution; and
  • facilitating the people’s participation in public and state affairs. (See part 2.2.2.)

Safeguarding

The third involves actions intended to safeguard the integrity of constitution, which goes beyond promoting the constitution, and extends to recognizing its fundamental importance by protecting it in a range of ways, including:

  • limiting the possibility of hasty amendments that detract from core constitutional values;
  • avoiding practices that distort constitutional norms, including an unnecessary resort to emergency powers; and
  • protecting the constitution (in extreme cases) from being illegally overthrown, for example by a military coup.

The three dimensions of implementation are closely related, in that things directed to ensuring that one of them occurs can have positive effects for the other two.

Can a constitution-making process contribute to implementation?

A key question for this part of the handbook is whether there are things that can be done during the constitution-making process that can contribute to successful implementation. With few exceptions, implementation issues received little attention prior to the late 1980s. In the wave of decolonizing constitution-making beginning in the 1950s, for example, it tended to be assumed that constitutions largely modelled on those of the departing colonial authorities would readily be transferred and work as effectively in new contexts in Africa and Asia as they had done in Europe. In terms of safeguarding the constitution, it was assumed that the institutional accountability involved in the separation of powers and in the constitutional jurisdiction of courts (then mainly in common-law countries) was sufficient. The failure of many countries to implement significant parts of their constitutions, the overthrow of others, and the difficulties inherent in implementing and safeguarding the more ambitious constitutions emerging since the 1980s have caused some attention to be given to things that can be done during a constitution-making process, or included in the constitution itself, that support its implementation in the three senses identified above.

Design of the process—encouraging public awareness during and after

As noted in part 2.2, an open constitution-making process that includes a significant focus on increased public awareness of constitutional options and encourages popular participation in discussions of choices can be expected to contribute to increased public knowledge of, and commitment to, a new constitution. People not previously familiar with democratic values and procedures are provided with necessary information and encouraged to participate in public affairs, enforce constitutional remedies, and encourage governmental accountability. An important issue seldom examined even in constitution-making processes that have involved effective awareness campaigns is how to continue programs of awareness of constitutional issues after the process ends. In South Africa, a wide range of well-designed awareness campaigns (involving numerous rural meetings and mass-media campaigns) meant that knowledge of the new constitution was at its peak in 1996. A final step involved the distribution of seven million copies of the constitution in all the official languages. All of this activity was coordinated by a secretariat to the constitutional assembly that ceased to operate once the new constitution was adopted. As a result, the extensive experience of building awareness was dissipated, and there has been limited additional constitutional awareness work since then.

Constitutions often encourage continuing constitutional awareness after the constitution-making process is over, by such means as offering translations of the new constitution into local languages and its wide distribution (e.g., see section 4 of the constitution of the Republic of Uganda 1995, or section 216 of the constitution of the Autonomous Region of Bougainville 2004). The constitution of the Republic of Ghana 1992 goes further, providing for a national commission for civic education to create and sustain awareness of the constitution; educating and encouraging the people to defend the constitution; formulating programs for realizing the objectives of the constitution; and formulating programs for awareness of civic responsibilities. Together with other significant constitutionally established independent oversight bodies, it is now a well-respected institution in Ghana. Most such provisions have limited effect because governments give it low priority and few resources.

Content and language of the constitution—speaking to the people

Both the contents of a constitution and the language in which it is written can encourage

broad popular support for its implementation. A constitution that people see as addressing the real issues leading to the new constitution and providing a vision for the future can really capture their imagination (as Kenya [2010] demonstrates). Other examples are the constitution of Rwanda [2003], the Indian constitution [1950], and the constitutions of Papua New Guinea [1975] and Uganda [1995]. An example of a statement of governance principles directed to resolving ethnic differences is the compact contained in section 6 of the constitution of Fiji [1990].

Constitutional mechanisms for encouraging implementation and promotion

A number of constitutions passed since the late 1980s (and a few made earlier) include provisions intended to encourage and support implementation. One category of arrangements is intended to address most constitutions’ tendency to state broad principles and set directions, and to rely on the legislature later to pass laws establishing new institutions, processes for enforcement of rights, and so on—which may not be passed for many years.

Some specify that particular kinds of laws—usually those needed to establish independent constitutional offices with enforcement, oversight, and similar roles (e.g., human rights commissions, ombudsman bodies, auditors general)—must be passed within a set period. The constitution of Ghana [1992] required that laws needed to establish nine such institutions (including the national commission for civic education, above) had to be passed within six months of the first meeting of the parliament after the constitution came into operation. The constitution of Kenya [2010] includes a schedule of time limits from six months to three years within which laws on more than sixty subjects were to be passed, and provided a right to petition the high court if any law listed in the schedule was not passed within the time specified. (See article 261 and schedules 5 and 6.)

The South Africa constitution[1996] provides time limits within which some implementation laws must be passed (see sections 21 and 23), including implementing rights to information (section 32) and just administration (section 33). But the constitution also includes provisions enabling enforcement of the rights in the absence of implementing laws.

Another approach similar to the latter part of the South African example is found in sections 22, 224, and 225 of the constitution of Papua New Guinea [1975]. Section 22 gives the judiciary the power, in a court case, to make such orders as may be necessary to fill any gap left by the absence of laws. Section 224 requires not only that laws be made providing for powers and procedures, and facilitating the performance of functions, of independent constitutional bodies, but that in the absence of such laws such bodies can provide for any deficiency in their procedures and have all powers reasonably necessary. Section 225 provides that it is the duty of all governmental bodies to ensure that the independent constitutional institutions are provided with the staff and facilities needed to carry out their functions—a requirement that the courts have ruled to be enforceable against the government.

Finally, there are a few examples of constitutions that establish institutions intended to oversee implementation. Perhaps the most far-reaching example comes from section 5 of the sixth schedule of the constitution of Kenya [2010], which provides for a commission on the implementation of the constitution to “monitor, facilitate and oversee the development of legislation and administrative procedures as required to implement the Constitution.”

An example of a body with less-comprehensive implementation responsibilities comes from the lengthy amendments made in 2002 to the constitution of the Papua New Guinea [1975] to give effect to the Bougainville Peace Agreement of 2001. Section 332 provided for a joint supervisory body made up of appointees of the Papua New Guinea government and the autonomous Bougainville government, which is responsible for overseeing the implementation of the peace agreement and the provisions of the Papua New Guinea constitution that implement the agreement.

Constitutional devices to safeguard (and implement) a constitution

Many modern constitutions contain devices for the safeguarding of the constitution that can be divided into two categories. The first involves internal mechanisms to promote its safeguarding in one way or another, the other to build support for safeguarding it from civil society and other sites of influence and power.

Internal devices to encourage safeguarding and implementation

Constitutions often contain provisions directed to encouraging those exercising state power to respect the constitution and accept accountability, including provisions that impose considerable limits on political leaders and administrative officials. Examples include:

Protection of the constitution from coups

Despite the obvious practical difficulties likely to be involved in the enforcement of such provisions, some constitutions make their overthrow unconstitutional (e.g., the constitution of Uganda [1995], section 3). Many call on citizens to protect and defend the constitution. Attempts are made to respond to the threat of security forces overthrowing the constitution by provisions placing the military under civilian control, and in a few cases by provisions giving representatives of the military or former combatants in a civil war strictly limited roles in civilian government (e.g., in the constitution of Uganda [1995], section 78, and the constitution of Bougainville, section 55).

Protection from hasty or damaging amendments

Many constitutions contain provisions regarding the process for constitutional amendment intended to ensure that amendments are not made hastily and are considered with great care. As well as requirements for “supermajorities,” there may be a requirement for lapses of specified periods of time between various stages of the enactment process, or even stipulations that the final stage cannot occur until a general election has taken place.

Limits on emergency powers

Under many constitutions, during a declared state of emergency, laws may be passed and actions taken that would otherwise be contrary to human rights protections, and such emergency powers have often been abused by governments seeking to control the opposition. Modern constitutions often aim to limit abuse of such powers by carefully defining the reasons for declaring emergencies; requiring prompt parliamentary approval of a declaration of emergency; providing parliamentary and judicial scrutiny of exercise of emergency powers; limiting the categories of rights that can be derogated during an emergency; and so on.

Certification of the constitutionality of legislative bills

The government and other authorities placing laws and policies before legislative bodies should be required to certify that in their view the bill or policy—particularly the bill of rights—is consistent with the constitution. This will ensure that questions of constitutionality are placed before the cabinet and other executive authorities and given appropriate attention. It will also alert the legislature to address the constitutionality issue. In the United Kingdom, the requirement for such certification regarding the bill of rights has proved most efficacious.

Judiciary

An independent, impartial, and competent judiciary is indispensable for the enforcement of the constitution and for asserting its supremacy. In civil law states, where judicial review of laws is not possible, the establishment of constitutional courts has been fundamental to upholding the constitution (as in Austria, Germany, Hungary, Poland, and South Korea). In common-law states, the final court, usually called the Supreme Court, has been critical to maintaining and elaborating constitutional principles (as in Canada, India, and the United States). Impunity for corrupt leaders, the result of executive control of the prosecutorial process and the judiciary, has caused major deficits in the rule of law and the enforcement of the constitution.

Independent bodies for accountability and redress, and politically sensitive roles

Many constitutions provide for a set of independent institutions that handle an increasing range of functions where independence from political interference is important. They include bodies with roles in relation to accountability and redress, which often have wide powers (e.g., ombudsman institutions, anticorruption commissions, auditors-general, human rights commissions), and others carrying out politically sensitive roles (such as judicial appointment bodies, public service commissions, and election boundary and management bodies). Independence is protected in a variety of ways, including requiring governments to provide them with staff and facilities (as in Papua New Guinea, above).

Codes of conduct

Enforceable codes (sometimes called “leadership codes”) set strict limits on a range of conduct by politicians and bureaucrats, including conduct that could give rise to conflicts of interest (e.g., Ghana, Kenya, Papua New Guinea, Uganda, and Vanuatu).

Direct democracy

Some constitutions seek to move away from the indirect model of democracy involved in electing representatives who make decisions on behalf of the people, and instead provide scope for citizens to participate directly in decision-making processes. They include arrangements for recall by voters of their elected representatives (e.g., the constitution of Uganda [1995], section 84), citizen-initiated legislation (Switzerland, and some states of the United States), public consultation on policies through plebiscites, and public participation in constitutional- amendment processes through referendums.

External devices to encourage safeguarding (and implementation)

Two aspects of external support for safeguarding the constitution require brief comment. The most obvious involves the people of the country concerned, who should always be the ultimate guardians of the constitution. To play such a role, the people need to be helped to understand the constitution and their rights under it. Encouraging people to play active roles in safeguarding a constitution involves the roles of civil society and social capital more than it does constitutional devices. On the other hand, constitutional provisions can support and encourage popular participation in safeguarding. The constitution can require state recognition of the roles of civil society and NGOs, as with section 15 of the constitution of the Philippines of 1986. Other potentially important provisions include ones guaranteeing popular access to courts and other constitutional bodies for accountability and redress, and provisions for direct democracy.

The second aspect of external support concerns the role of the international community, which since the late 1980s has tended to play a significant part in many constitution-making processes, and often remains involved in supporting implementation in various ways. This often extends beyond support for establishing and operating institutions and laws to various forms of support (direct and indirect) for efforts to safeguard the integrity of the constitution. Of course, there is always a need to balance the value of such support with awareness of political and other dangers of actual or perceived international interference in sensitive domestic affairs.


2.2 Public participation

In this section we discuss the role of public participation in constitution-making, how to facilitate an inclusive process (see box 9) as well as the risks and opportunities related to a highly participatory process. We then focus on the tasks undertaken by constitution-making bodies to promote public participation in the official process. They include preparing the public to participate through civic education and public information campaigns, as well as consulting the public on issues such as whether a process should take place (and how) and what should be in the constitution itself.

Some aspects of public participation in constitution-making processes are not discussed in this section, but are instead considered elsewhere in this handbook. We discuss the referendum procedure in part 3.5. Issues about how civil society and the media participate in the official process are discussed in part 4.1. Representation of the diversity of the nation as a whole in constitution-making bodies is discussed in various sections related to establishing the institutions of constitution-making in part 3.


2.3.6 Foreign advisers

We use the term “foreign adviser” broadly to mean any international actor who supports the administrators, managers, or constitution-makers in planning and carrying out their tasks, regardless of whether such actors serve as mentors, technical advisers, or substantive advisers on the content of the constitution.

Why are foreign advisers needed? Preparing a constitution is not an everyday event. In some countries few if any local actors may have ever participated in or witnessed a constitution- making process; local actors may have little or no experience with governance, and professionals may have fled the conflict. Foreign advisers have played effective advisory and mentoring roles in many such contexts and have assisted with a variety of tasks, including sharing their comparative constitutional experience on how to structure the process, the content of the constitution, setting up websites, information technology systems, and financial systems, supporting the running of large assemblies, coordinating security, and observing electoral processes. Here we focus mainly on the roles of advisers other than those with expert specialist knowledge of constitutional issues and the drafting of the constitution whom we categorize as “experts” (adopting a term for such persons used in a number of processes). We discuss “experts” (local and foreign) in part 3.4.1.

Ideally, the foreign adviser will not simply take over a position but also serve as a mentor to appropriate counterparts, helping them develop the capacity to do the job. However, this requiresthe foreign adviser to have not only skills in transferring knowledge, but also a good understanding of the local context (history, culture, and so on)—and not all do. Moreover, for foreign advisers to succeed, they should view the transfer of knowledge as a reciprocal process, and so should not just read books and papers to research the historical, political, and cultural contexts in which they are working (many do not even do that) but should also seek assistance from the national staff they work with in an effort to better understand local context and how it may best be taken into account to improve the effectiveness of their work.

Avoiding common pitfalls of using foreign advisers

When foreign advisers are involved, careful planning is required to avoid common problems. Some foreign advisers have been inexperienced, have provided advice that did not suit the context, have taken over the jobs of national actors without developing local counterparts, have pushed the agendas of their home countries, or have advanced their own personal interests. In this section, we discuss some practical tips for avoiding these pitfalls.

Before hiring or accepting foreign advisers or mentors, managers should ensure that local knowledge and expertise are harnessed by the local constitution-making bodies. It is best to determine needs through the strategic planning process and request the types of foreign advisers, if any, that will further the process. Such advisers have ranged from experts on analyzing public consultation views to graphic designers.

Some countries do not attract much international attention, and if foreign advisers are needed they must be requested. But in higher profile processes, embassies or international organizations are usually keen to provide advisers. Before accepting assistance, the constitution-makers should determine whether the foreign adviser or mentor will be viewed as an unacceptable foreign intervention in the process—in particular by spoilers. In some contexts, the international community is viewed as having caused the conflict. If the context is sensitive, all foreign advisers (or those from a particular country) may be refused, or other measures may be taken, such as having the advisers sit separately from the constitution-makers or even answer questions via the Internet or telephone.

The constitution-making body may be able to select and budget for its own foreign advisers. However, they can be costly. Embassies or other international actors will sometimes offer advisers at their own expense. In this case, the constitution-makers or managers should request to see the qualifications, evidence of experience, and references of the proposed advisers, or else suggest their own. Managers will have to be diligent in seeking out the right types of advisers. To give an example relevant to the category of experts (discussed more in part 3.4.1), if advice is needed on an issue such as federalism, Western countries tend to offer only Western advisers, from countries such as Australia, Canada, Germany, or Switzerland, when experts from India, Malaysia, Nigeria, or elsewhere may be more relevant or better qualified. There should be a trial period to see if the foreign adviser is well suited for the task at hand and fits the context.

To ensure that managers and advisers both understand what is expected, the foreign adviser or mentor should be provided with clear information about tasks, length of trial period and employment, reporting lines, expectations of confidentiality, and the like. If the adviser is being seconded from an international agency or organization, it will be important to be clear about who will manage the foreign adviser and to whom he or she will report.

It is essential that foreign advisers understand the context in which they are working—both the historical and the cultural context—and also the aspects of culture that can affect working life and relationships where absence of understanding and sensitivity can lead to misunderstandings and conflict in the workplace. Ideally, the foreign advisers selected should be persons who already have an extensive knowledge of the country in question, or have worked in countries with similar circumstances. If the only ones available have little or no knowledge of the local context, the foreign advisers should be briefed. A packet of reading material illuminating the local history, politics, and culture—or at least a reading list—should be put together. If there is a group of foreign advisers, it might be possible to arrange a briefing seminar. Neither the host country nor the advisers should feel that this is inappropriate; ignorance or biased knowledge derived from casual conversations with interested actors will not enhance the contribution of the experts.

Ideally, foreign advisers will be accountable to and report to the national managers of the constitution-making process. There should be a duty of confidentiality if they are advising on sensitive matters, and the advisers should sign a contract to this effect. In one instance, a constitutional adviser helped with a sensitive process, and then upon returning to his academic institution wrote an article divulging information that endangered the process.

It may not always be possible to find an adviser with both the necessary expertise and the relevant language skills. The adviser should be offered the necessary translation or interpretation services (see part 2.3.9) and whatever material resources are needed, such as a cell phone, computer, desk, transportation, and housing.

When managed properly, foreign advisers have played effective roles in many contexts and have assisted with a variety of tasks. In general, foreign advisers who have been effective:

  • had relevant experience in a number of diverse constitution-making processes;
  • were good listeners and humble and remained in the background;
  • either knew the local context well, or learned and worked closely with and respected those who did;
  • did not advise on issues or aspects of the process for which they were not qualified, and helped find qualified advisers when necessary;
  • supported a nationally owned and led agenda without attempting to take over the process or take credit for the official work of the constitution-makers (as one South African noted, “if I had a dime for every international who has claimed to write the South African constitution I would be rich”);
  • emphasized the development of national actors rather than always doing the task themselves; and
  • remained engaged in the process over the long term (although sometimes it is helpful for specific experts to fly in for a short time to advise on a specific issue or problem or assist with a discrete task). In some processes, foreign advisers have remained in-country or have returned regularly to work closely for years with the constitution-makers, managers, and staff members turned implementers.

Part 2: Tasks in a constitution-making process

This book assumes that its readers are involved in, may expect to be involved in, or wish to understand the implications of the process of making a new constitution—especially a process that involves considerable consultation with and participation by the public. The structures by which this task may be performed vary according to legal and political traditions, backgrounds, contexts, local conditions, and other constraints.

In part 2 we focus on breaking down the larger task of “participatory constitution-making” into its various components. Each of these tasks will have to be carried out by someone, and here we examine what is involved in the tasks, leaving structures aside for the moment. We return to these structures in part 3. It is not possible to divorce studying a task entirely from the question of who will perform it, but we wanted to avoid confusing the reader by saying “the constituent assembly does this” or “the commission does that” because some readers might find that in their own national contexts, some body other than a constituent assembly or a commission was likely to carry out the task—indeed, their countries might not have embraced the idea of a constituent assembly or a commission at all. Our focus here is on the essence of the various tasks.

To visualize how a task might be carried out in a particular country, and what the constraints and opportunities are, it may be necessary to think at an early stage of who will carry out that task. We do not consider it our job to dictate who should carry out the various tasks—though we do not hesitate to comment on what experience seems to teach about this. It is for each country to decide, in the light of resources, context, and pressures, how best to get each task done. Table 2 indicates for a number of constitution-making processes who has done what task. And in part 3, when we discuss institutions and structures, we comment on what those structures have done, and might do.

Types of tasks

Constitution-making can be compared with designing a major public building. The authorities might think of their tasks as deciding what the building is for, why it is needed, where it should be situated, what facilities and spaces they want it to contain, what it should look like, and how it should be designed and built to achieve those results. They might want to consult the public, as users, about the design, layout, and location; questions of accessibility to certain users would arise, as would issues of time, scale, and cost.

Similarly, the constitution-making task will involve decisions about design, including who will use the product and how. There will be decisions about how to consult the public and how to use the resulting contributions. Municipal authorities do not have to educate their architects, but someone may need to educate the constitution-makers, as well as the public, about what a constitution is and what it can and cannot do. And the constitution-making process will require complex administration. In this part, therefore, we offer sections about decision-making on policy and technical issues, on educating the decision-makers and the public, and on carrying out public consultation. There is a section on the specific task of drafting the words of the document, and a section on the administrative tasks involved in managing this sort of process.

Organization of this part

This part is organized to some extent chronologically; we begin with tasks to be performed at early stages, and the part ends with the procedures for adoption of a constitution and some details about its implementation. But many tasks are carried out more than once in the process— notably public consultation, which might take place early in the process for such questions as “Do we need a constitution-making process?” and “If so, how should we design it?” Later on, the public might be consulted again: “What do you want in your new constitution?” And even later on, “What do you think of the draft that has been prepared?” Other tasks are more or less continuous (such as monitoring and management) or are reiterated (such as drafting and redrafting). Therefore, we have put like with like: tasks of working with the public, such as civic education and public consultation, are grouped together, as are technical tasks about the substance of the constitution, and management tasks.


2.2.1 Introduction to public participation issues

Changing modes of making the constitution

Focusing on public participation helps us understand the complexity and dynamics of constitution-making. It alerts us to the variety of interests and groups that often become involved, or may want to become involved, in making a constitution. It points to the degree of inclusion in a process. It may give some guidance about the kinds of issues likely to dominate the constitution-making process. It draws attention to the relative strength of the participating groups, often pointing to the dominance of one or more groups. It can help lift the veil from the official process by giving insights into the actual negotiating and decision-making processes, where the key decisions are really made. It can also show the influence of outside forces (which on the whole do not feature in the design of the formal process), often away from the glare of publicity, and give some indication of how nationally autonomous the process has been. (See part 4.2 on the role of the international community.)

The importance of broad popular participation in constitution-making processes has varied historically and regionally. In a country where there is a tradition of interest-group organization and representation, even if that has suffered interruption, direct popular participation in the process usually receives low priority. The greater level of media activity and the stronger tradition of representation help ensure that people have a chance to hear debates on constitutional issues without necessarily having direct involvement in the official process. They may also be able to convey their views through established channels, rather than through special participatory arrangements established as part of the constitution-making process. By contrast, where civicgroups, unions, media outlets, and political parties are few, less established, or of limited reach, establishing special arrangements for direct involvement of the citizens is usually more necessary as a way to convey and obtain information, enhance the public orientation toward law, and build constitutionalism. For these reasons, popular political participation attracts a higher priority in Africa, Latin America, Asia, and the island Pacific.

Other significant factors in the increasing focus on public participation in constitution-making processes include the restoration of democracy in many parts of the world since the late 1980s and the increasing recognition of people’s sovereignty, the constitution being the basis of the organization and functioning of the state. The right to participate is provided for by several international norms, particularly the right to take part in public affairs (article 25 of the International Covenant on Civil and Political Rights), the right of minorities to self-rule (the United Nations declarations on minorities and on indigenous peoples), and the right to self- determination (the charter of the United Nations, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights). Some authorities regard these and other human rights instruments as perhaps a basis for a right to participate in constitution-making. Despite these normative and practical reasons, there is considerable controversy over the desirability of public participation. Before we consider the controversy, let us describe what we mean by “public participation,” major participants, and principal methods of public participation.

Meanings and aspects of public participation

Public participation has many aspects. The distinctions we may draw are: (a) direct versus indirect participation or representation (indirect raises questions of method of election or appointment and of accountability, or reporting back); (b) participation in discussions, lobbying, and the like versus participation in decision-making; (c) participation as part of an official process versus informal participation, with people taking their own initiative.

Public participation covers a broad spectrum of activities, including voting and standing for elections; being part of decision-making (in various state institutions, particularly the legislature and the executive), perhaps with a veto on some matters; opportunities to influence official policies; forms of self-government, such as autonomy; and consultative bodies. Public participation in constitution-making processes is more specific, directed as it is toward influencing the final outcome of the process, the constitution. However, even here public participation takes a variety of forms. It includes much more than formal procedures for receiving people’s views, and extends to private initiatives to mobilize support and lobby constitution-making bodies, which often take place even if there is no such formal procedure.

There is no set pattern; the extent and form of public participation depend on the overall design of the process. Sometimes there may be a deliberate attempt to limit public participation. The reason may be a distrust of the people in general, perhaps because of their lack of understanding of constitutional matters or of moral judgment, the fear of a populist constitution, or a wide reform agenda with major implications for the allocation of resources. It is sometimes said that after World War II, the lack of trust in mass politics led to restrictions on public participation in the constitution-making process (especially in Germany and Japan, although in the latter case the fear was that public pressure might prevent the political reform that the Allied powers deemed necessary).

Public participation can occur at many stages of constitution-making, and can take several forms. It may be more intensive in some stages than in others. The preprocess stages may be undemocratic; the prior principles may have been negotiated between closed groups or factions. The eighteenth-century process to develop the United States constitution became more open and participatory as it progressed, after the constitution had been drafted. But in some cases, the earlier stages may be the most democratic and participatory: massive protests and engagement by thousands of people may have been instrumental in getting the process started (as in the Philippines [1987] and Kenya [2005]). At some stages public consultation may be wide-ranging, with several opportunities for the public to express views before the draft is prepared. And even when an initial draft has been prepared, there may be ample opportunities to comment on it before final decisions are made. There is nothing like getting your teeth into a concrete set of recommendations after what might have been a bewildering array of proposals and counterproposals. Sometimes both the initial and the concluding stages might restrict public participation, as decision-making is often facilitated by some degree of secrecy.

The process may sometimes begin with initial discussions about the parameters and guidelines for future talks. This has been characterized as talks about talks. (Proceedings 2007). (See part 2.1.9 on interim constitutions.) This is usually an elite affair, often undertaken in private (as in Iraq, in Nepal, and in the failed Sri Lanka talks)—although in South Africa and Spain voters were allowed to ratify the outcomes of such initial processes through elections. Often interim arrangements themselves restrict public participation (as in Afghanistan and Nepal).

The degree of public participation in the actual preparation of the draft constitution varies. There is often considerable public participation when the draft is prepared by an independent commission (in Kenya and Uganda, the commission was required to promote public participation and to follow public recommendations in drafting the constitution). Preparation of a draft by a separate commission is a common pattern. When the draft is prepared by a committee of the legislature or of the constituent assembly itself (a rather less common arrangement) both public participation and transparency are less evident.

When the draft is being debated and enacted, public participation decreases, as the members of the relevant body (usually the legislature or the constituent assembly or an equivalent body) focus on the draft—adopting, rejecting, or amending it. But even here, public participation can continue through lobbying, petitions, public demonstrations, and the like. Some processes provide for referral to the people by referendum to resolve outstanding issues, but the use of this device has been limited. (See part 2.5.2 on dealing with divisive issues.) A more common

use of referendums is to determine whether the draft constitution produced by another body (such as the legislature) should be adopted, and that provides a further opportunity for the public to review the merits of the draft. Often, the final decision on the adoption of the constitution as a whole lies with the legislature or with the constituent assembly. But when the draft is put to a referendum, the final decision rests with the people—the highest form of public participation.

The impact of public participation

The impact of public participation does not depend only on formal provisions about how the constitution-making process and participation in it are structured. Much depends on the persuasiveness of the public submissions, or the political clout of the lobby (e.g., how closely it is connected to powerful interests), or the zeal with which organizations carry on their campaign. The submissions may be addressed to the constitution-making body, but they also seek to mobilize the people and win their support, to put pressure on the decision-makers.

Impact also depends on the approach of the decision-making body to the collection and analysis of the public’s views and the importance it attaches to them. The manner in which official bodies (constitutional commissions, constituent assemblies) process the oral or written submissions made to them is critical. (See part 2.2.4.) The submissions can be manipulated, or analyzed with a bias, or some views may even be suppressed.

Public consultations can come from the top down or the bottom up. They mostly come from the top down (when initiated by political or civil society elites), but sometimes there are attempts at public consultation that arise from the bottom up, as in Kenya and Uganda. In Nepal they primarily came from the top.

How people are instructed in constitution-making tasks and their sequencing, the manner in which they can address the commission or the assembly, who provides civil education, and the monitoring of the process for impartiality are all crucial elements in the effectiveness of public participation.

The transparency and authenticity of the analysis of views are fundamental to the credibility of the entire process. In Kenya the decision-making bodies engaged in extensive public consultation, painstakingly analyzed public views, and reflected them in the draft and final constitutions. In Afghanistan, the decision-makers were essentially political leaders; the commission was not an independent body, and the views that had been collated and analyzed by the research section and the Afghan secretariat were ignored. The importance of careful analysis of public views is crucial when the institutions for constitution-making are enjoined to incorporate the people’s recommendations. (See part 2.2.4.)

The relevance of decision-making bodies

The focus of the literature on public participation is often on the interaction of the people with the decision-making bodies. Equally important can be the composition of these bodies and the rules whereby decisions on the constitution are made. It is often said that a constitutional commission should be independent and consist of experts, and that constitutional assemblies should be elected through proportional rather than majoritarian voting systems. But little has been written about the independence of the members of the assembly. (In Nepal they were all elected under the auspices of political parties and were subject to party whips.) And how the people interact with the assembly once it has embarked on the decision-making stage is also important. This bears on the rules of procedure, which determine the openness and transparency of its committees, public hearings, and the like. All too often these rules are taken from the standing orders of legislative bodies—which may be quite inappropriate for a body charged with making a constitution. This seems to be an under-researched issue. In participation by delegates, the extent and quality of public participation depends heavily on the rules of procedure and the autonomy of the assembly. Participation by citizens depends on the political, consultative, and lobbying activities of the people and their organizations.

Participants

The concept of “the people” (or “the public”) is more complex than is usually realized. A proper assessment of the impact of popular participation cannot be made if the concept of “the people” is not disaggregated. There is no such thing as “the people.” Rather, there are religious groups, ethnic groups, the disabled, women, youth, forest people, pastoralists, “indigenous peoples,” farmers, peasants, capitalists and workers, lawyers, doctors, auctioneers, and practicing, failed, or aspiring politicians, each pursuing his or her own agenda. They bring different levels of understanding and skills to the process. The key players in the international community pursue their own objectives. Sometimes the composition or procedure of bodies with decision-making roles in the constitution-making process may privilege one or another of these groups. Unless one believes in the invisible hand of the political marketplace, not all such groups can be counted on to contribute to producing a “good” constitution. The proper and fair management of public participation is essential for a good process. (Despite the complexity involved, we cannot avoid sometimes using the terms “the people” and “the public,” but where we do, the considerations just discussed may need to be borne in mind.)

An agreement may be easier if the parties to the process are limited and the talks are confidential (but sometimes bringing in new groups may help—bipolar disputes are difficult to resolve). However, even when successful, these agreements and the ensuing constitution may depend excessively on the goodwill of the negotiators and may fail to respond to the concerns of the people. They may lack firm social foundations.

Particularly problematic is the participation of groups that have used violence to pursue their objectives (especially in postconflict situations). They have demonstrated a lack of commitment to human rights and the peaceful resolution of differences. Often they demand preconditions for peace talks and constitution-making, including amnesty for violations of the

rights of others and the disruption of the peace. Such amnesties are controversial and make others feel that the perpetrators of violence or abuse will simply reassert their power and undermine the security and well-being of others. On the other hand, the refusal to make some accommodation with them can complicate the peace process (as Iraq discovered with the “lustration”—exclusion from holding public office—of thousands deemed to be part of the Saddam Hussein regime). Giving amnesty for past offenses on the condition that no fresh violations will take place may be an incentive to stop violence. Sometimes the solution may be to postpone the question of accountability.

In some countries where there is deep mistrust of politicians, the predominance they normally enjoy in the constitution-making process has been questioned. It may be said that they have narrow personal or party interests, closely connected to their access to and exploitation of the state and its resources, which they try to advance or preserve through the process. They may also have an interest in fomenting ethnic differences to maintain their leadership positions, regardless of the national interest, and thus their role can be deeply divisive. Since in one sense the politicians can be the principal beneficiaries of the resources of the state, it can be argued that their influence on the making of the constitution of the state should be limited. However, attempts to reduce that influence are seldom successful, and in practice a constitution can seldom be made without their full participation, as they control the state and the institutions of the constitution-making process.

Assessing the impact of public participation

It is not easy to evaluate the impact of public participation. It is easier to assess the role of rules and procedures in the official process. Traditionally, public participation and the concept of constituent power have been examined in the context of the primary procedure for decision- making: for example, either the referendum or the constituent assembly. Studies on constitution- making focus primarily on the decision-making bodies, and for the most part ignore the pressures that might be brought on the decision-makers. For a complete picture, it is necessary also to look at the informal processes, the mobilizing of the support of groups and communities, and the contribution of civil society in terms of ideas and organization. Partly with the help of emerging regional or international norms, many groups (women, the elderly, the disabled, indigenous peoples) are able to mount impressive campaigns of their own making. Moreover, the efforts and influence of some groups are evident or transparent, but some (e.g., international actors, key embassies, and international agencies) shape the process behind closed doors.

Another difficulty in making this evaluation is the lack of agreement on the criteria for assessment of the impact of public participation. Sometimes the focus is almost exclusively on whether a new constitution was achieved, regardless of its quality. At other times the focus may be the reverse: whether a bad constitution was prevented. Or the focus may go beyond the actual document to the dynamics of the process and the wider outcome from societal or political viewpoints: whether the process was healing, whether it stimulated constructive public debate, whether it led to a more informed and activist citizenry. It is not difficult to imagine how different groups may choose to place their own emphases in their assessments.

The impact of public participation may be examined by reference to various factors, including the following:

  • its effect on the outcome, i.e., the content of the constitution;
  • the resolution or creation of conflict, particularly national unity or disunity;
  • the broadening of the political reform agenda;
  • the responsiveness of the constitution to national aspirations and issues;
  • the legitimacy of the constitution;
  • its effect on people’s consciousness—understanding the machinery of government and enabling people to evaluate the policies and pretensions of politicians;
  • its effect on people’s empowerment, and their willingness to participate in public affairs; and
  • the promotion of understanding and support for constitutionalism.

On these and other issues there has been limited research, and as yet few well-informed judgments; these factors have contributed to a range of competing views. More research, particularly of an empirical kind, is necessary. Here we present the main arguments or assertions of the proponents and critics of general public participation.

Potential opportunities in public participation

In addition to the normative principles mentioned at the beginning of this section, there are practical justifications for public participation. In some countries, especially in Asia, the island Pacific, and Africa, political parties are not mass based and do not represent sections of the people with some degree of common interest (as parties often do in Western countries). Nor are there many intermediate bodies that can speak for the people. Often the only alternative, if it is considered desirable to engage the people, is their direct participation, in slums, villages, and small towns.

Public participation is deemed to strengthen national unity through an inclusive process, reflecting religious and linguistic diversity, by resolving national differences and striking a balance between national identity and values and those of regional or cultural communities. The involvement of the people in the constitution-making process has the potential to reconcile conflicting groups. Public participation empowers the people by acknowledging their sovereignty, by increasing their knowledge and capacity, and by preparing them for participation in public affairs and the exercise and protection of their rights.

People’s participation is important to expand the agenda of constitutional (and social) reform. Generally the agenda is defined by elites, largely urban based. When invited to give their views, members of rural communities and workers are likely to present new perspectives on issues

such as public participation, decentralization, land, basic needs, and the accountability of members of parliament and local officials; these perspectives are firmly rooted in local realities. Popular engagement can bring to the dialogue different social forces, interrogating the assumptions of the elites and officials, and to some extent setting up a counterbalance to politicians. Until recently, almost everywhere politicians have played a decisive, and sometimes the exclusive, role in constitution-making. But worldwide, there now appears to be cynicism and suspicion about the motivations of politicians and political parties; they are seen as serving their own narrow, partisan interests. The broadening of the reform agenda that comes from popular participation is an important corrective. Public participation often leads to an emphasis on values and morals, the responsibility of the state, and the integrity of officials, while politicians focus on state powers and institutions.

Public participation can seldom be effective without civic education, which enhances understanding by “the people” of the structures and mechanisms of the state and its obligations to its citizens, which are often protected through fundamental rights. The people learn about the ways to monitor state institutions and about accountability. They may thus acquire knowledge and respect for the principles of constitutionalism. Possibilities for public participation, together with the possibility of funding, may help create and develop civil society, not merely reflect it.

A broad consultative process may also reduce the risk of bad surprises that sometimes occur during a process, such as the sudden discovery that support for an agreement has disappeared because a disaffected, unrepresented party has mounted a public campaign and has swayed popular opinion—or that at a late stage, politicians have made a deal to sabotage the process or have agreed on constitutional provisions unfavorable to the public interest. Bringing the public into the process makes it less likely that deals will be struck that will be undone immediately.

Some say that a constitution produced through a widely participatory process will be more stable, with prospects for longevity; it represents a considerable consensus and is responsive in that there will be fewer demands for renegotiation down the road. There is also a widely held belief that public participation endows the constitution with considerable legitimacy and leads to a feeling of ownership by the people and a corresponding resolve to defend it against sabotage.

Potential risks of public participation

Supporters of public participation have been criticized for romanticizing “the people.” The reality, the critics say, is much less edifying. People may not be generous or willing to enter into serious discussions with others. They may seek only self-interested positions that can continue to fuel rather than resolve conflicts. A significant part of the reason for such problems with public participation is that “the people,” and even leaders of significant social groups, often have a limited understanding of the proper role and scope of the constitution. Whether they are conservative or populist, people may be intolerant, prone to manipulation by fundamentalists, contemptuous of experts, and long-winded, and their participation may unreasonably prolong the process.

One fear about public participation is that in a divided society the debate may revolve around ethnic axes rather than the national axis. Politicians with an interest in the mobilization of ethnicity will push the interests of their communities. This not only obscures the national interests but also leads to fragmentation and competing claims based on ethnicity. When the distinction is based on religion, the discourse becomes increasingly religious, forcing religious values on the whole country. When the basis is ethnicity, cultural differences may lead to serious disagreements on issues such as choice of national language and protection of minority rights. In either case, those who are not well placed in the religious or ethnic order may find that their voices are silenced and that their lowly position is unlikely to be remedied. Concessions to cultural norms and hierarchies may devalue the rights of individual citizens, by the constitutional recognition of the community as an important bearer of rights.

The constant emphasis on culture may result in constitutions that are no longer congruent with dominant international economic and social forces. In the process the gap between the constitution and social and economic realities widens, often increasing the risk of future conflict.

On the other hand, public participation opens up the process to external influences. In constitution-making processes in many parts of the world (especially Africa, Asia, and the island Pacific), most resources for civic education (an essential precondition for public consultation) come from Western governments, either directly or through a few international agencies. Materials used for civic education are heavily influenced by international norms and the practices of Western states. Insufficient attention is paid to national history or culture (which may be seen as inconsistent with human rights norms). Young college graduates from the West are normally sent in to assist local nongovernmental organizations (NGOs), which in most cases are totally dependent on external funds.

Box 10. Veil of ignorance

The philosopher John Rawls suggests that the best way to design a society would be for everyone to operate in a rational, self-interested way, but behind a “veil of ignorance” that conceals from everyone his or her own characteristics: male or female, with a disability or without, language, tribe, religion, and age. Negotiations between such rational but ignorant people would produce a system fair to all (Rawls 1971). In the real world it is not possible to ensure such beneficially ignorant constitution-makers. There may be moments in a country’s history when groups are ignorant—“How many of us are there in this group?” “Are we likely to win the next election?” Those may be good moments to produce a fair constitution—and if the moment passes, attitudes may harden and fairness fade.

Those NGOs, responsible mostly for civic education and sometimes for the collection of public views, have also come under attack as promoters of public participation. The bases for the critiques include claims that such bodies are dependent on outside, often international, sources; responsive to economic opportunities (“fundraising”); urban based; nondemocratic (not membership organizations); bureaucratic; competing for money and roles; not particularly knowledgeable about constitutions; and often allied to political (including ethnic) parties.

A participatory process tends to be the opposite of “the veil of ignorance.” John Rawls’s theory of the veil of ignorance is based on the assumption that decision-makers do not realize who they are (black/white, male/female, high caste/low caste) and so vote not for a particular interest but for the general interest (Rawls 1971). In the participatory process, the purpose is to engage with individuals and groups with differing interests so that they can advance those interests (not the general interests of all groups and citizens). Particular interests are often pursued with vigor and sometimes intimidation.

The variety of interests (frequently conflicting) usually involved in a highly participatory process makes it hard to find reasonable agreement. The difficulties are compounded when there is an emphasis on achieving consensus on major constitutional issues. A great deal of time and effort may then be devoted to trying to build a consensus, with complex bargaining. Sometimes a small group may end up effectively having a veto. Although processes often provide a mechanism for coming to a decision in the absence of a consensus (see part 2.5.2 on dealing with divisive issues), the process becomes lengthy (well beyond the point when the public can make any further useful contribution). The constitution itself may also tend to be lengthy, as a settlement may be possible only with the acknowledgment of the claims of many interests.

Sometimes the consequence of a participatory process in a deeply divided society is that decisions are made not in accordance with the participatory and transparent manner of the formal process but secretly, by a small group of influential members or even nonmembers.

So the process of decision-making may be driven less by “deliberation” (i.e., the fair consideration of all positions, guided by values of democracy and the general welfare) than by populism and crude bargaining. Some say that this defeats the objective of a constitution, which should be to provide a general set of provisions addressing national interests in a rational manner.

A participatory process can sometimes generate a feeling (especially among minority groups) that this is their one opportunity to achieve their objectives, even if those objectives have no particular constitutional significance. And influential groups, distrustful of politicians, may seek to constitutionalize what are essentially matters of policy, not a framework for decision-making. Both these factors may work against “deliberation.”

The prospects of a deliberative approach may also suffer from the holding of a referendum. The reason is that in the hope of encouraging a “yes” vote in the referendum, decision-makers may be influenced to include provisions in the draft constitution that they believe are most likely to be accepted by the people or even by some particularly troublesome group (often religiously or ethnically oriented). In doing so they may dispense with what is rational and feasible. (See part 3.5 for a discussion of the use of the referendum in constitution-making processes.)

The role of experts (see part 3.4.1) is often marginalized in participatory processes. Once the people get into the tempo and spirit of constitution-making, and gain a sense of ownership of the process, they tend to disregard, even disdain, professional advice (which is often rooted in more conservative traditions). This may also lead to the neglect of what some regard as the “cautious” rules for the method and scope of constitutions. The form of bargaining that attends a participatory process may lead not only to a lengthy document but also to a constitution lacking internal coherence. A particular casualty may be the workability of the constitution, due to the burden placed on it to accommodate a variety of interests. The ambitiousness of the constitution may then exceed the capacity of the state, and may in due course lead to the delegitimization of the constitution.

Conclusion

Views on the consequences of a participatory process are sharply divided between its supporters and its opponents. The differences are based partly on ideological factors, partly on practical grounds. Hitherto there has been relatively little scholarly attention paid to this debate, making generalization difficult. Greater attention needs to be given to the dynamics of public participation, the phases where such participation is appropriate, and the methods of public participation.

There are clear advantages to public participation, both for the process and for the long-term prospects of constitutionalism. Most of the objectives of a constitution-making process, such as promoting reconciliation, strengthening national unity, or broadening the social agenda, cannot be achieved in the absence of public participation. There is also now consensus that certain norms, based on the principles of self-determination and political rights, should be incorporated into the design of the process.

But the dangers of public participation are also real. The challenge is to avoid the perils of manipulation of the people by interest groups, ethnicization of opinion, populism, and so forth. Otherwise the constitution-making process will become just another form of politics and not a deliberative process that generates consensus-building and reconciliation. It should promote conversations not only between the people and the constitution-makers (constitutional commissions, constituent assemblies, and the like) but also among the people themselves. This can make them aware of the histories, contributions, anxieties, and aspirations of others, and deepen the understanding that is so critical to developing national unity, conflict resolution, and peacebuilding.

A deliberative process requires public participation opportunities that are not isolated but instead provide ongoing chances to discuss and engage with the design of the process, the key issues, the development of the draft, and the implementation of the final constitution. The next sections focus on the practical and other key aspects of preparing the members of the public to participate through civic education efforts and consulting them at various stages of the process.


2.3.7 Making a historical record of the process

Constitution-making processes are rare and often defining moments in a country’s history. The process should be carefully documented, using photography and videography as well as archiving all of the important documents. Some countries have created national museums or special exhibits that display original drafts and final versions of their signed constitutions, and that educate and promote awareness about the constitution, the role it plays in society, and how it was made.

Even if a decision has not been made about how the process will be preserved and shared with future generations, managers should plan from the outset, if possible, to document and preserve the process. Some processes have had photographers, videographers, and archivists on staff.


2.2.2 Preparing the public to participate: Civic education

Making a constitution involves multiple choices about issues of great complexity; those responsible for making the choices usually need a significant level of information about the issues involved beforehand. (See the discussion in part 1.1.) In a highly participatory process, the people of the country in question are asked to contribute to the making of choices, which can extend to issues that could be quite difficult for the majority of people to understand— issues such as the numerous tasks and institutions involved in a constitution-making process, and the reasons for and steps involved in making a constitution more difficult to change than an ordinary law (entrenchment). Without access to information about the process or knowledge about constitutional choices being considered, as well as basic civic knowledge, most members of the public will have little opportunity to participate meaningfully in the process.

As a result, civic education is at the heart of a participatory process. For the purposes of this handbook, we define “civic education” in a constitution-making process to be any activity that helps prepare the public to participate, both before and after the constitution is prepared and adopted. Before the constitution is adopted, preparing the people involves enhancing their knowledge of not only the constitution-making process (so as to improve understanding of the nature and extent of opportunities to participate), but also the roles of a constitution and the choices in relation to content that are available when making a new constitution. After the constitution is adopted, preparing the people means developing their capacities and knowledge to engage in public affairs and to exercise and protect the rights that the constitution extends to them. It is important to note that participation in the process is also a form of civic education and if the participatory process is credible it can transform attitudes and beliefs as well as educate.

Civic education is widely recognized as an important part of constitution-making processes, especially highly participatory processes. It is referred to in the official mandates of some constitution-making bodies, one example being the Uganda Constitutional Commission, in respect of which the Uganda Constitutional Commission Statute of 1988 provided a power to “stimulate public discussions and awareness of constitutional issues.”

Any civic education program should be inclusive, open, and credible. Because the constitution has an impact on all people in the country, it should represent everyone—all age groups (from schoolchildren to the elderly), and every possible significant group within the society, whether defined by class, culture, ethnicity, religion, or on any other basis. It should prioritize reaching those who seldom participate in the political life of the country (such as minorities and marginalized groups). Successfully preparing the people in this regard is not just a matter of holding an isolated event or workshop, but an ongoing process of cultivating a culture of public participation and democratic values and practices as well as constitutionalism.

This section provides an overview of civic education objectives, a discussion of which bodies or actors should carry out this task, and a description of some of the methods that have been used in past processes. It also includes an analysis of some of the common problems associated with implementing more formal civic education efforts in constitution-making processes. It concludes with some practical tips for improving civic education workshops.

Key stages of civic education

The key stages of a constitution-making process at which civic education efforts are often carried out, and the main likely objectives of civic education at each such stage, include the following:

  • Before the first main steps in the process begin, when the main goals of civic education relate to informing people about the process, including alerting people to the opportunities for public participation and the manner in which they may be able to participate in the process, and (depending on the nature of the process in question) could involve efforts to prepare the people for their views to be sought in the early stages of the process on issues such as:
    • how later stages of the process should be designed; and
    • the agenda of issues to be considered during the process.
  • Prior to the constitution-makers reaching decisions about the constitution, when the goals of civic education would include helping inform people about issues related to the process, such as:
    • how the process is being structured and conducted;
    • the objectives of the constitution-making process and the principles that will guide the work of the constitution-making body, if any; and
    • roles the public can play in the process and how they can participate.

Box 11. Civic education in Rwanda prior to the referendum [2003]

Two years of civic education preceded Rwanda’s referendum. Copies of the draft constitution were distributed and intensive efforts were made to reach marginalized groups, including those who could not read or write, to inform them about the contents and help them decide whether to vote for the draft. These efforts seem to have led to high voter turnout and an overwhelming vote in favor of the constitution.

Civic education at this stage would also inform them about issues concerning the nature of a constitution and the kinds of choices that can be made when deciding on a new constitution, including such issues as:

  • what a constitution is and what it can and cannot do;
  • the constitutional history of the country and why a process of constitutional reform is necessary;
  • democratic principles, institutions, and practices to promote more democratic behaviors and attitudes; and
  • key constitutional issues so that the public can provide thoughtful input during any public consultation.

Box 12. South Africa [1996]: Preparing the public to participate

The leaders of South Africa’s constituent assembly were not legally mandated to carry out civic education. They announced that they would engage the members of the public and consult them about the constitution because it would create a sense of ownership and legitimacy for both the process and the constitution. The administrative management body of the assembly established a community liaison department, which took four months to plan the participatory process. Emphasis was placed on reaching as many citizens as possible, including illiterate and disadvantaged citizens, using open constitutional public meetings, meetings with civil society organizations on specific issues, an advertising and media campaign, and civic education workshops.

The community liaison department worked in close coordination with the constitutional assembly’s media department to develop a campaign to raise awareness that a process was happening (many other governmental reforms were also competing for attention) and to encourage the public to participate. The media campaign emphasized the role of the public in the process, the advertisements including messages such as “It’s your right to decide your constitutional rights” and “You’ve made your mark” (meaning “You voted; now have your say”). The first month was a pilot phase. External groups were contracted to evaluate whether their messages were effective, enabling them to be revised along the way.

The community liaison department also provided civic education on the process and on constitutional issues through the use of posters, brochures, leaflets, a biweekly constitutional newsletter called “Constitutional Talk” (160,000 copies were distributed each week), booklets such as “You and Building the New Constitution,” comic books, and an official website (developed with the University of Capetown). A weekly TV program, Constitutional Talk, promoted debates on constitutional issues such as the death penalty. An hour-long radio talk show was organized in eight languages and reached upwards of ten million South Africans each week. Ten thousand people also made use of a telephone “Constitutional Talk Line” to call in and leave submissions or receive information. The talk line was available in five languages. (See, generally, Skjelton 2006.)

Although this was not initially planned for, the community liaison department established a constitutional education program, which linked with hundreds of civil society organizations. The 486 face-to-face workshops targeted the country’s disadvantaged communities. Civic educators were hired and trained, and a manual was created to ensure that the messages and the methodology were consistent. The three- hour workshops used participatory methods such as role-playing. The objectives were to educate disadvantaged citizens about the process, South Africa’s constitutional history, and human rights, and also to encourage participants to provide input. The workshops did not educate people about specific constitutional issues or options or the draft constitution. Most of the workshops were held after the constitutional public meetings were conducted.

The meetings were held with multiparty panels of constituent assembly members in attendance and were conducted in all nine provinces. These were used both to educate (citizens asked questions of members and learned about the process) and to gather views on constitutional issues before the draft constitution was prepared. The public saw for the first time previously warring factions sitting peacefully together discussing constitutional issues. The process was also precedent-setting in that black South Africans were included in politics as they had never been before.

Four and a half million copies of the draft constitution (in a simplified format) and twelve million copies of the final constitution were sent through the mail for free, as well as being distributed in taxis, newspapers, and schools. Copies of the final constitution in particular were sent to the members of the official security forces. Braille versions and recordings of the final constitution were also made, as were comic-book versions of the bill of rights. Teaching aids on the final constitution were distributed to schools. These materials were distributed during “National Constitution Week,” which was created to promote constitutionalism and ownership of South Africa’s new constitution. To carry out these postadoption tasks, the community liaison department remained in operation for a few months after the constituent assembly concluded its work.

An external evaluation determined that three-quarters of the South African people— about thirty million—had heard about the process, and nearly twenty million knew that they could make a submission on constitutional issues. It is unclear what these numbers mean in terms of preparing citizens to make decisions on constitutional options—a stated goal of the civic education program. Nonetheless, the depth and creativity of South Africa’s participatory process has inspired numerous other constitution-makers to commit to preparing the public to participate.

  • After the preparation of a draft constitution, when the goal of civic education may be to inform the people about the contents of the draft (and if public consultation beforehand was conducted to inform them about how their views were taken into consideration in the draft) and to prepare the public to provide input on the draft.
  • Before any referendum on constitutional reform, when the goal of civic education would be to inform people about both the referendum process and the content of the proposed new constitution.
  • After the adoption of the constitution, when the goal of civic education would include informing the people about:
    • the contents of the constitution (a discussion directed to all audiences, including schoolchildren);
    • how key provisions of interest to particular groups or communities affect their lives and how specific rights can be accessed or enjoyed through the constitution;
    • civic responsibilities under the constitution; and
    • what responsibilities key government actors and others have to implement the constitution (for example, educating the judiciary about any new duties or institutional changes that will occur as a result of the constitution).

To provide readers with an idea of how these educational objectives are carried out at different stages, we outline in box 12 South Africa’s efforts to prepare the public to participate.

Who conducts civic education programs?

Constitution-making bodies are sometimes mandated to undertake civic education. But even when they are not officially given such a role, some such bodies may still take on the role, usually as a result of a commitment to ensuring that the process is “people-driven.” (South Africa provides an example of such a situation.)

The tasks required to prepare the people to participate can seem daunting. However, constitution- makers rarely undertake this task on their own. If they are required to do it, some form of an administrative management body (see part 3.3) or governmental department will assist. In addition, media and civil society (including women’s groups, human rights organizations, trade unions, religious organizations, and minority groups) often play significant roles.

In some processes, a national curriculum is created; civil society and local leaders agree to follow the national program and are trained to use it. Sufficient time must be allocated to train educators to effectively deliver the program, particularly in the use of participatory methodologies. To clearly define responsibilities and relationships, the constitution-makers may enter into memoranda of understanding with civic education providers, who may also be required to sign a code of conduct. (See appendix C.2.) Mechanisms are also sometimes established to monitor whether a civic education program is being implemented effectively and as agreed.

A constitution-making body that develops good working relationships with civil society and the media in presenting an effective and helpful civic education program will often establish a precedent for open and democratic participation in governance in the future. It may lead the constitution-making body and the process itself to be viewed as more credible, accessible, and transparent.

Civil society may sometimes take its own initiative in relation to civic education. Ideally there will be some coordination with the official process. However, at times, the constitution-making body may be conducting a “top-down” approach and have little interest in engaging the public. Civil society may then act on its own to promote a participatory process. (See part 4.1.)

Planning civic education

Part 2.3.2 discusses preparation of strategic and operational plans for constitution-making processes, plans that should normally include arrangements for civic education programs, and box 23 provides specific ideas about how to plan such programs. If resources are limited, the constitution-making body may be able to tap into existing channels for civic education. Examples may include community organizations, academic institutions, schools, churches, popular TV, blogs, websites or radio programs, as well as government programs.

Practical planning tips

  • Ensure that there is sufficient time to plan. In South Africa (see box 12) the planners took four months to plan for civic education and public consultation efforts.
  • Some initial research may be needed to determine the level of civic knowledge about democratic practices and constitutions as well as attitudes, beliefs, etc. A plan should consider what level of civic and constitutional knowledge is necessary to participate effectively or what should be prioritized.
  • In a highly participatory process, the constitution-making body should aim to ensure that accurate information and effective civic or educational messages reach a wide and inclusive audience—in particular, groups in the society that have historically been marginalized (see box 9 to ensure program is inclusive).
  • Most constitution-making bodies do not have unlimited time and resources and as a result they need to determine what is feasible and cost-effective. For example, it may be appealing to develop a sophisticated website, but if only a small percentage of the public uses the Internet, resources may be better spent elsewhere.
  • Evaluations of the impact of civic education efforts should be conducted to measure whether they are achieving the intended results. Some constitution-makers have hired experts in civic education or advertising to conduct research as well as develop and test methods.

Methods of civic education

Most civic education programs use a combination of methods to reach different groups and communities. The experience of South Africa (described in box 12 above) provides a useful example. In contexts where there is an independent media, it is common to rely heavily on the media. (See part 2.3.11 for a discussion about linking with the media.) This may involve either linking with reliable newspapers or radio and television stations, or the constitution-making body developing the capacity needed to produce its own media programs, including using social media tools.

Research may be needed to determine which medium or method is most effective in reaching which groups best, and at what times, to convey information in a manner that is most trusted and credible. International NGOs may often fund such studies. Conveying information and educational messages effectively to a particular audience is highly context- and culture-specific. What has worked in one place may fail in another. It is usually necessary to take into account differences between audiences in the same country (for example, women, illiterate citizens, and minorities). This section provides examples of various approaches to civic education that have been used at different stages of constitution-making processes.

Television and radio

Research in sixty districts of Nepal showed that 90 percent of the people listened to the radio for up to two hours a day and that this was the most trusted source of information. In most developing countries, radio tends to have the widest reach. In many countries FM technology has made it possible to have a variety of radio stations catering to the needs of most linguistic groups. In countries without good supplies of electricity, battery-operated radios can be used. Where batteries have been too expensive, donors have sometimes distributed wind-up or solar- powered radios (e.g., in the Democratic Republic of the Congo, Liberia, and Malawi).

Radio and television offer a variety of creative possibilities to convey information and to educate. Dramas, including single performances of plays and long-running serials, and discussion programs, interviews, and even traditional storytelling and songs can all be used to convey information or educational messages. In Afghanistan and Nepal, material about constitutional issues was integrated into existing popular radio soap opera programs.

Call-in shows and debates can serve as a way for people to ask questions, and can spur debate and dialogue on constitutional issues. Television, radio, and the constitution-making body’s official website can broadcast live sessions of a constituent assembly. In Nauru, radio was used to broadcast the constitution-making committee’s debates on every single clause of the draft constitution. A surprising number of people followed those proceedings closely, and the public found it interesting to see the complexities of the debate. Broadcasts of concerts and sporting events have been organized around the constitutional process. Repeating programs at different times of the day may enable them to reach different groups (i.e., women may listen or watch at different times than men), or may allow people to hear information more than once.

Brazil’s constitution-making body is one that supplemented the use of existing mass- communication media with the production of in-house media. Its own media center produced 716 television programs and 700 radio programs that were distributed to multiple stations, with segments aired daily (Rosenn 2010: 445).

Print materials

In the small South Pacific island country of Nauru, half of which did not receive a radio or television signal, three large billboards were placed in highly visible areas. One read: “The Constitution is for the people. The review will help us learn more about the Constitution and be more active citizens of Nauru,” and another stated, “The Constitution belongs to the people of Nauru. The review is our chance to make the Constitution more truly Nauruan. Your views and opinions will be needed in step 2—public consultation.” The third listed the six steps in the review process (Le Roy 2010).

Newspapers, magazines, and popular Internet sites can be paid or encouraged to include:

  • copies of the draft constitution, the final constitution, or any other important document;
  • requests for submissions of constitutional options and directions on where to send them;
  • information about important constitution-making process events and activities or deadlines;
  • regular columns that answer readers’ questions about the constitutional process or constitutional issues; and
  • stories or comic books about the process.

In-house efforts can supplement the effort as well. Newsletters, brochures, posters, leaflets, and booklets can all be developed, ranging from in-depth discussions of complex issues to comic books about the process or the constitution. In Afghanistan and other countries, biweekly or monthly magazines have been distributed to more than a hundred thousand readers. Disseminating such publications can be assisted by use of websites, Facebook, Twitter, etc. Some countries have used the regional or district field offices of their constitution-making bodies to assist with disseminating materials to remote areas. New technologies, such as digital books, could also be distributed to every community with key civic education materials loaded onto them.

To prepare the people to provide their views, Uganda circulated the existing constitution along with a booklet titled “Guiding Questions on Constitutional Issues” and one explaining how to prepare memoranda containing submissions on constitutional issues. In various countries, after a draft constitution has been produced, or after the eventual adoption of a new constitution, constitution-making bodies have developed booklets explaining the constitutional document and why certain choices were made. In some cases comic books have also been developed for people with low literacy levels.

Box 13. Examples of official websites of constitution-making bodies

Bolivian Constituent Assembly (in Spanish): http://www.laconstituyente.org/

Ecuador Constituent Assembly (in Spanish): http://constituyente.asambleanacional.gob.ec/

Ghana Constitution Review Commission: http://www.crc.gov.gh/

Kenya: Committee of Experts: http://www.coekenya.go.ke/

Malawi Law Commission—Constitutional Review: http://www.lawcom.mw/index.php/constitutionreview

Nepal Constituent Assembly (in Nepali and English): http://www.can.gov.np/en

Somalia Independent Federal Constitution Commission (Somali and English): http://www.dastuur.org/eng/

Zambia: National Constitutional Conference: http://www.ncczambia.org/index.php

In Ecuador, a constitutional glossary was created to familiarize the public with terms related to the upcoming constitutional referendum. In Kenya, a snakes-and-ladders-like game was created in order to teach people about human rights (though this was in fact produced prior to the constitution-making process). Such materials can bolster face-to-face civic education efforts. For example, in Nepal a large poster was designed to illustrate the journey involved in the constitution-making process; it was used to start discussions about the process.

Cultural and sporting events, games, and competitions

In Fiji, art competitions on the theme of the new constitution were held. Other countries have held poetry, song, and essay competitions to encourage public engagement in the process. These competitions have been for both adults and students. Sports events can also be an effective way to introduce youth to the constitution-making process.

Official website of the constitution-making body

Many recent constitution-making processes have benefited from establishing an official website. The constitution-making body can thereby communicate and consult directly with the public. This is especially useful if the media are biased or inexperienced and untrained and cannot be relied upon to report information accurately; the Internet gives the public another way to receive information.

The public can also be encouraged to send questions, comments, and suggestions directly to the website or though links to social media tools. However, the constitution-making body must have the resources to respond and manage the flow of information effectively. If five thousand questions are asked, ideally each should receive a response. A section on the website of frequently asked questions can help with basic questions.

An official website can be a valuable resource for the general public, journalists, members of civil society, advisers to the process, government actors, international actors, and especially members of the diaspora. The constitution-making body’s willingness to post its budget, drafts of the constitution, and other key documents can vastly improve the transparency and openness of the process and add to its overall credibility. The following list of potential components for an official website draws upon the experience of a number of processes:

  • Introductory page
    • An overview of the role and structure of the constitution-making body
    • An overview of why the constitution-making process is taking place
  • Information about how the public can participate in or learn more about the process
    • A schedule for the constitution-making process (including the main steps involved and an estimated timetable)
    • Information about constitutions, constitution-making, and constitutional issues
    • Upcoming events, activities, or public sessions
    • The times and purposes of events or activities
  • Biographical data on leaders and members of the constitution-making body
    • Including information not only about their backgrounds, but also about how they were selected or elected and their functions and powers
  • List of committees or other working groups of the constitution-making body
    • Description of the mandate and names of members of the committees
    • Information on upcoming meetings and agendas
    • Working drafts or final reports from relevant committees
  • Copies of key documents related to the process
    • Copies of the current and any past constitution of the country in question and all relevant legislation or other legal instruments relevant to the establishment of the constitution-making process
    • All relevant educational material
    • Public surveys, questionnaires, and calls for submissions
    • Press releases and any reports from the constitution-making body
    • Rules of procedure, budgets, working drafts of the proposed constitution, the final constitution, and any report of the constitution-making body
    • Codes of conduct for constitution-makers or other relevant actors
  • Online video or audio recordings
    • Proceedings, sessions, public consultation meetings, and other events in real time
  • Questions and answers
    • Can provide list of frequently asked questions about the process
    • Mechanism for members of the public to get answers to questions about either the process or constitutional issues
  • Getting public views
    • A platform for the public to submit its views about the constitution (see part 2.2.3 on public consultation)
  • External hyperlinks (including to social media tools) and search tools

Mobile messaging services and social media

The constitution-making body can use mobile messaging services or social media such as Facebook and Twitter to send out critical pieces of information, such as the results of a vote on a key provision of the constitution, the opening of the polls for a referendum, or the final adoption of the constitution. Texting and social media can also be an effective way to communicate with youth. South Africa set up a phone line for the public to use to ask questions or give suggestions. (See box 22 for an example of how Iceland is using social media to prepare its constitution.)

Civic education workshops

Face-to-face workshops are a common method for delivery of civic education programs. Usually they will be planned to supplement messages (about the constitution-making process and how people can participate) being delivered through other channels (e.g., television, radio, and print media). However, face-to-face workshops often play important roles in such programs. They provide publicity for the constitution-making process, and they can bring constitution-makers in direct contact with the people, enabling the constitution-makers to gauge for themselves such things as the extent to which “the people,” or particular social groups, understand constitutional issues.

Most importantly, face-to-face workshops may often be the only effective way to reach disadvantaged or hard to reach groups who do not have much access to media, are illiterate, or do not speak the dominant language. It will often be important to make special efforts to reach such groups. By way of example of the difficulties sometimes involved, a woman villager in Zimbabwe recently reported that people may “tune out” information and educational messages about the process because they feel such information does not concern them or that it is for lawyers.

There is no particular correct method for conducting such workshops. Relevant experience distilled from largely practitioner experience and advice is included in the discussion under the next heading in this part (“Practical tips for conducting civic education programs”). Some of the points made about organizing face-to-face meetings as part of public consultation apply here as well. (See in particular part 2.2.3, under the heading “Practical tips for organizing all types of face-to-face meetings.”)

There has been much debate in the democratization field about the efficacy of civic education workshops. A key question is whether participation in them does result in improved democratic knowledge, beliefs, and behavior. Studies suggest that it can—but only if the workshops are carefully planned, have sufficient resources and time, use participatory methodologies that link the subject matter to the real lives of the participants, and offer follow-up sessions (e.g., Finkel 2003). Designers of civic education in constitution-making processes need to consider carefully how these lessons can improve their plans and strategies. It may mean that more consideration is given to reaching marginalized groups on an ongoing basis than to holding isolated workshops for vast numbers of participants. Each program will have to assess what is realistic.

As noted above, in a participatory constitution-making process, a key goal of civic education will normally be to help to prepare people to give their views—both about the process of constitution-making and on constitutional issues. If face-to-face workshops are to be held as part of civic education programs in such a process, it will be necessary to plan for and structure the workshops with these goals in mind. Where civic education programs are developed in a rush, sometimes such goals are neglected. For example, one of the goals of South Africa’s civic education workshops was to prepare disadvantaged groups to make submissions or share views during the public consultation phase. (See box 12.) Yet the individual workshops did not cover constitutional concepts, nor were follow-up workshops held to help workshop participants provide input to the constitution-makers. The workshops were also held after the first draft was prepared. Ideally, time would have been allocated to this task prior to preparation of the draft (as has been done in Kenya, Nauru, Papua New Guinea, Thailand, and Uganda).

Those planning and implementing civic education programs are often up against tight deadlines. This may be because of poor planning, or a lack of understanding of the complex nature of this task, or because once a civic education process gets under way, there are demands from the public for a more extensive program. There can also be pressures from those in control of the constitution-making process to complete civic education as quickly as possible so as not to

delay the overall process. As a result of these and similar pressures, it may be difficult to conduct even basic research on the levels of civic knowledge and common beliefs and attitudes. Further, when a program is under way, there is often little or no attempt to test out the approach and or to evaluate the impact of the workshops. Instead, success is often measured by the number of workshops and participants rather than by knowledge gained or transformation in democratic practice, beliefs or attitudes.

It is vital to the success of civic education generally, and in particular face-to-face workshops, that the material presented should be accessible to the audience. Sometimes the approach taken in the design and presentation of formal workshops reduces the chance of success. For example, in Nepal [ongoing process], lawyers prepared dense educational materials and civic educators lectured from these materials on topics such as the difference between a parliamentary system and a presidential system. However, many of the educators did not understand what a constitution was or how it worked. This is not uncommon and probably does not prepare the public to any significant degree to participate in a way that is meaningful and has an impact.

Civic education workshops have sometimes been conducted largely “for show.” The trend toward more participatory constitution-making processes has resulted in some authorities feeling pressure to have the process at least appear participatory or “people driven.” Such pressures can include external demands (e.g., from the media, civil society, international actors, etc.) for public participation, including workshops directed toward encouraging such participation. In Timor-Leste [2002], civil society demanded a participatory process. The official civic education workshops and initial public consultation meetings were conducted on the same day. Participants had no time to reflect on the civic education to provide thoughtful views and suggestions on the constitution.

Civil society members protested to the United Nations Security Council that citizens were not being given the opportunity to participate meaningfully and reflect on the constitutional decisions before them. While there have been few empirical evaluations of civic education in constitution-making processes, we can assume that few positive results are gained from programs that do not adequately prepare the people to participate and they could even discredit or weaken the process.

Practical tips for conducting civic education programs

Some practical tips about implementing civic education programs can be drawn from lessons learned through the experiences of dozens of practitioners in both the democratization field and constitution-making processes. While many of these tips involve a particular focus on civic education workshops, others extend to issues about civic education programs more generally.

Plan carefully and dedicate sufficient resources. A nationwide civic education program will require time to conduct some basic research, plan, train staff, test approaches, and implement. Strong planning and management skills are required to coordinate dozens or hundreds of civic education partners (usually NGOs, local leaders, or government departments or bodies), as well as for preparation of media campaigns, workshops, public meetings, activities such as sporting events and song contests, printed materials, radio and TV programs, websites, links to social media tools, and so on. civil society or other partners are usually needed. Ideally they should be selected on the basis of such criteria as established reputations, experience in design or conduct of civic education programs, or use of participatory methodologies. So a constitution-making body may require considerable expertise (perhaps through use of short- term consultants) even in its selection of partners.

Identify groups and communities that have been historically disadvantaged and may require special attention to ensure their participation. (See box 9) This may require translation of printed materials, radio and TV programs, and workshop presentations into minority languages. When delivering face-to-face workshops, it may require providing childcare, holding workshops at night or early in the morning when women or farmers in a particular area are available, or providing food or accommodations if groups are nomadic or populations are spread out. There may be a need to train members of particular groups or communities to be resource persons on constitutional issues and to have them serve as liaisons with the constitution-making body.

Use a participatory methodology in face-to-face workshops. There should be a focus on the use of role-playing, mock political debates or discussions, small-group activities, and the like to achieve the learning objectives of the program. Examples include holding mock constituent assembly sessions or debates with women or students. In Nepal, representatives of marginalized groups were brought together to discuss constitutional issues in much the same way as the constituent assembly might do. Street-theater performances and short plays can also be effective ways to educate people about rights.

Train workshop facilitators. Facilitators should receive training in the participatory methodologies and also in basic constitutional knowledge. Depending on the objectives and skill levels of the civic educators, training may require a few weeks.

Start workshop discussions with issues that concern participants. Participants may be especially concerned with issues such as land rights, health services, or political rights. The facilitator should design participatory exercises to help explain how a constitution or democracy relates to those concerns and how the group can get involved in the constitutional and democratic process to better address those specific concerns.

Hold at least three workshops or sessions with each group or community. Studies show that holding fewer than three workshops for any particular group has little impact on levels of knowledge of such things as democratic principles, values, or practices (Finkel 2003).

Develop realistic learning objectives and test approaches in advance. Some core constitutional concepts can be explained, but this may require a combination of civic education methods (e.g., printed materials of various kinds, TV and radio programs, cultural events, and workshops). Where face-to-face workshops are used, if multiple workshops can be held for particular groups, there should be careful testing to determine if the approach is in fact working. If evaluations indicate that certain audiences still lack the knowledge and tools to make choices among constitutional options—often a key objective—then either objectives or methodology may need to be revised. Raising awareness about how a constitution relates to the lives of the participants and clarifying some basic democratic values may end up being more realistic objectives where a remote population has such limited levels of formal education as to make it difficult for choices to be made on constitutional issues.

Stress neutrality and develop a code of conduct that describes what this entails. The designers and facilitators of all aspects of civic education must understand that they cannot use the process to promote a particular form of government or any other personal agenda in relation to the process or constitutional issues. The process should be monitored to ensure that those implementing an official civic education program of the constitution-making body are doing it in an ethical manner and according to a code of conduct.

Do not mislead people about what democracy or a new constitution can change in participants’ lives. When any part of a civic education program (printed materials, radio or TV programs, websites, or facilitators of workshops) is encouraging the public to provide input for the process, the material presented should be accurate about how views may or may not be used and what a constitution can and cannot do.

Give the official process a logo. An official logo will identify the civic education materials and activities as those conducted or approved by the constitution-making body. The logo should be advertised as widely as possible to ensure that citizens can distinguish the official civic education program from those conducted by unofficial actors who may not have accurate information or who may even intend to misinform the public.

Monitor and evaluate. Evaluation both of civic education activities and of their overall results is important. This is especially true when a program is operating over an extended period, for monitoring and evaluation can then enable the constitution-making body to adapt and improve the program whenever problems are revealed. There may be advantages in monitoring and evaluation being conducted by an outside group that may be more objective.

Some challenges of implementing civic education programs

Most civic education programs are conducted with good intentions. The problem lies in their implementation, including unrealistic objectives given time and resource constraints and sometimes a lack of awareness about what the task entails. As a result, it is helpful to highlight some of the main implementation challenges experienced in other processes.

Civic education is rarely neutral. civic education programs are often funded by foreign donors and use foreign-developed materials that promote a particular type of system, such as federalism. In several countries, foreign actors have tried to “sell” their system of governance as the best form. Such efforts often ignore specific cultural contexts and the social mores of the country where the constitution-making process occurs, and may limit the extent of local analysis of the problems as well as consideration of locally derived solutions. Similarly, civic educators have signed codes of conduct that obligate them to deliver the official curriculum in a neutral way (e.g., in South Africa [1996] and in Kenya [2005]). Yet civil society members, political parties, government agencies, and even the constitution-makers themselves have used civic education to promote their own agendas.

While it will often be necessary for constitution-makers to partner with civil society in the development and presentation of civic education programs, it must also be noted that NGOs are often established mainly to access donor funds, which can include funds for civic education. Donors may issue calls for proposals in English and only in urban areas; this often excludes rural organizations which may be more closely linked with marginalized groups and even some longstanding organizations with poor English or proposal writing skills. Donors should make efforts to map the civil society organizations that are experienced and help those that need it to prepare proposals. Some funds for organizational development may be needed.

Some organizations may be more interested in the money than in achieving the goals of the civic education program. Because of pressure on donors to spend money allocated to support a constitution-making process, donors may not monitor the effectiveness of NGO civic education programs or even whether they were held. (Afghanistan [2004] is one example.)

Few civic education programs have had the time, resources, and commitment to reach disadvantaged groups effectively. Just to make contact with certain groups may pose significant challenges. In Eritrea [1997], the constitution-making body struggled to communicate with nomads. It went to great lengths to organize meetings and provided food and water for weeks so that the nomads could stay in one place and talk with constitution-makers in their own language.

Because the resources necessary to reach marginalized groups and minorities, especially in poor countries, are seldom available, even a “neutral” civic education campaign may contribute to increased inequalities in a society by further empowering those who already have access to some level of social networks or resources. The most disadvantaged and isolated citizens will rarely have time to participate or to translate civic education into political, economic, or social gains without sustained engagement and targeted resources.

Box 14. Evaluations of civic education workshops: Some observations

It is common to pass around evaluation forms at the end of civic education workshops. They tend to ask questions such as:

  • Were the objectives clear and were they achieved?
  • Did you understand the presentations?
  • Did you have adequate opportunity to ask questions and/or contribute to discussions?
  • Would you come again to a workshop organized by this organization?

There are problems with evaluations of this sort. The questionnaire is completed at the end of the workshop, when everyone is anxious to leave and get home; many people will answer positively because they have enjoyed the event, but this gives the organizers absolutely no idea whether it has achieved its objectives.

An event that is designed to affect attitudes can be measured by questioning people at the beginning and again at the end, using questions designed to reveal attitudes, though not simply by asking “How has your attitude changed?” If an objective is to encourage people to respond to the opportunity to have input into a constitution-making process, this can be measured. Tests of recognition should be carried out ideally before the event and again after some time has passed: for example, it is hoped that more people will have heard of the constitution or the concept of federalism than had before the event.

Testing for knowledge is much more difficult. Asking whether people feel they have a better understanding elicits an attitude and not a measure of knowledge. People who already have some knowledge may be able to judge whether they now have more. It is far harder in the case of those who know nothing about the issue at the beginning. Members of the public do not expect to be given an examination as the price of attending a workshop. And unless the evaluator was present and knowledgeable, it may be impossible to know whether what was learned was accurate.

There are many creative means for evaluating results. For example, more or different things may be learned about participants’ reactions by having a space where people can write their reactions (e.g., a wall papered with plain paper with pens provided; a pile of shapes on which people can write, which are then hung on a “comment tree”).

Finally, we emphasize that such challenges are discussed not with a view to discouraging constitution-makers from carrying out this task, but rather to stress that ambitious civic education objectives can be hard to achieve. This task in particular requires careful consideration of what are realistic objectives and how to achieve them with the time and resources available. (See part 2.3.2 on strategic planning.) Constitution-makers may not have the time or skill to do this, and as a result they may need to set up arrangements under which they only oversee this task rather than implement it themselves, provided of course that the task is allocated to competent partners, and that their performance is subject to ongoing critical monitoring and evaluation.


2.3.8 Keeping records

Why record keeping?

A constitution-making process creates an astonishing quantity of words: public and other submissions, deliberations of commissions, committees, and assemblies, and, of course, the words of the constitution, as well as various drafts. Careful planning is necessary for keeping records of these words (and for deciding which words are to be discarded and which retained). Records may need to be kept for a variety of purposes:

  • Records of what people say to the constitution-making bodies, whether orally or in written form; important because public participation is meaningless if there is no way of recording it and ensuring that it can be used in the constitution-making process; also because the people want to know that what they say is being treated with respect, even if they realize that not everyone’s point of view can have an impact on the final document.
  • Records of the deliberations of the bodies responsible for making the constitution; important because in the future lawyers and courts may come back to the records for assistance in interpreting the constitution, and because there are likely to be disagreements during the constitution-making process about what was said, and these can be resolved only by referring to the records.
  • Records of the actual decisions made; important for obvious reasons—this is the immediate basis for the constitution; but also difficult because in the heat of debate, unless there is firm leadership and impeccable note-taking, it may not be possible to reconstruct later what was decided, especially as some people will have vested interests in distorting what was decided.
  • The developing text of the final document: this must be kept in reliable custody to avoid the risk of its being lost or even tampered with.

These points concern the integrity of the actual process. In addition, making a constitution is an important national event, and future historians ought to be able to study its various stages.

In many legal systems it is permissible to look at the record of lawmaking bodies as a guide to interpretation. Such reference to sources has become much more prevalent in recent years, and is perhaps particularly common in constitutional interpretation. Many courts will permit this only if the records are publicly available, because any other procedure would be unfair. To make this possible, the proceedings of many constitution-making processes have been published. An early example is the verbatim record of the debates in the constituent assembly of India—similar to the verbatim reports of parliamentary debates, often known as Hansard in common-law systems.

Issues in record keeping

The steps that need to be taken to ensure proper record keeping can include:

  • acquiring the necessary equipment and staff in advance to record oral submissions;
  • establishing good filing systems in advance for submissions and other documentation;
  • setting up a good system for analyzing submissions and communicating them to the decision- making bodies (this is looked at in some detail in part 2.2.4);
  • supporting each committee with a secretarial staff, including someone with knowledge of the substance of the process to make notes and keep formal minutes of decisions;
  • having available the staff and equipment necessary to record the deliberations of decision- making bodies and their committees, including transcribing the records and (ideally) publishing them. Whether a verbatim record of committee meetings will have to be determined, but a full record, like that normally kept of the proceedings of legislatures, should be kept of the meetings of a constituent assembly or similar body; and
  • arranging for full records to be kept after the constitution-making process is completed. One copy (indeed, perhaps originals, for which this concept makes sense) should be deposited in the national archives, but if there is any rule in the particular country that records in the archives are not open for public use until a number of years have passed, that rule should be waived for the constitution-making records.

Among the factors that should be taken into account are the risks of records being destroyed (by vermin or damp in the case of paper; by fading in the case of photocopies) or lost. National archives are not necessarily immune from these problems (in the 1990s the national archives of Vanuatu were seriously damaged by a typhoon), so more than one depository should be identified. Reliance on modern technology may have its own hazards; it may be superseded, and websites may cease to be maintained. University libraries may be less efficient than one would wish. (Copies of important documents donated to some university libraries seem to have disappeared.)

It would be wise to have several copies in different places. It may indeed be wise to keep copies of documents in more than one country.

Maintaining security of documents connected with the process can be an important during a process, not least because of the dangers of sensitive issues being misunderstood or deliberately manipulated by opponents of the process, or simply by people seeking their own political advancement through a controversy arising from the process. For example, at a very early stage of one process, a foreign adviser produced a draft document intended to be seen only by the chair of the process, generating some ideas about structures. But a member of the constitution- making body stole the document, removed the cover sheet that explained its purpose, and passed it on to political interests who wanted to stop the process and who used it in attempts to discredit the process. While as much transparency as possible in a process is both desirable in principle and makes the burden of maintaining security lighter, this example illustrates the point that there are likely to be stages in a process and some categories of documents generated where secrecy will be required. In such instances, it needs to be made clear who has rights of access to any restricted document. Measures need to be put in place to ensure that no one else has that access.

More on records and record keeping

As noted, some countries have contemplated establishing special archives—indeed, museums— of constitution-making. The verbatim records of the constituent assembly debates in India were published, and they are available on the Internet: http://parliamentofindia.nic.in/ls/debates/debates.htm.

There is also a useful search engine at:

http://viveks.info/search-engine-for-constituent-assembly-debates-in-india.

Many modern constitution-review processes have websites, and they may even have full records on these. However, websites are ephemeral; there is no guarantee that they will be maintained after the review processes are completed. For legal purposes it may be difficult to persuade a court to accept a document taken from a website.

A constitution itself may contain provisions about interpretation that have implications for record keeping. The Papua New Guinea constitution says:

(1) The official records of debates and of votes and proceedings–

(a) in the pre-independence House of Assembly on the report of the Constitutional Planning Committee; and

(b) in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connection with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

An act of parliament provides how these records are to be used in court. The records of the constituent assembly were published to enable them to be referred to in this way.